{ "id": 11240267, "name": "W. CARROLL STEPHENSON, JR., Plaintiff v. TOWN OF GARNER, a Municipal Corporation, RONNIE WILLIAMS, JACKIE JOHNS, SR., and JOHN ADAMS, Defendants", "name_abbreviation": "Stephenson v. Town of Garner", "decision_date": "2000-02-01", "docket_number": "No. COA99-43", "first_page": "444", "last_page": "454", "citations": [ { "type": "official", "cite": "136 N.C. App. 444" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "310 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766125 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0818-01" ] }, { "cite": "305 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525775 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0552-01" ] }, { "cite": "371 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "366 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "560", "parenthetical": "extending immunity to both the county and the board of commissioners" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 542", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523597 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0542-01" ] }, { "cite": "192 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "282 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565286 ], "year": 1972, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0383-01" ] }, { "cite": "35 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "656", "parenthetical": "plaintiff overcame demurrer on evidence showing that \"but for\" defendants' interference, the contract would have been made" } ], "opinion_index": 0 }, { "cite": "225 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611950 ], "year": 1945, "pin_cites": [ { "page": "506", "parenthetical": "plaintiff overcame demurrer on evidence showing that \"but for\" defendants' interference, the contract would have been made" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0494-01" ] }, { "cite": "412 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "644-45", "parenthetical": "overcoming summary judgment" } ], "opinion_index": 0 }, { "cite": "330 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508087 ], "year": 1992, "pin_cites": [ { "page": "680-81", "parenthetical": "overcoming summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0666-01" ] }, { "cite": "349 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732777, 4738513, 4738804, 4734109, 4737790 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0417-02", "/nc/318/0417-01", "/nc/318/0417-03", "/nc/318/0417-04", "/nc/318/0417-05" ] }, { "cite": "346 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358878 ], "year": 1986, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0318-01" ] }, { "cite": "411 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "330 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513373 ], "year": 1992, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0487-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "495 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "724-25", "parenthetical": "when officials are sued in their individual capacities, a statement of the capacity in which they are being sued must be included in the caption, the allegations, and the prayer for relief" }, { "parenthetical": "\"[although the defense of immunity had been raised ... plaintiffs did not attempt to amend their complaint to specify the capacity in which they were suing\"" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "347 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551074 ], "year": 1998, "pin_cites": [ { "page": "554", "parenthetical": "when officials are sued in their individual capacities, a statement of the capacity in which they are being sued must be included in the caption, the allegations, and the prayer for relief" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0548-01" ] }, { "cite": "66 F.3d 62", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11308551 ], "year": 1995, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/f3d/66/0062-01" ] }, { "cite": "370 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "593-94", "parenthetical": "authorizing conditional use permitting in North Carolina" } ], "opinion_index": 0 }, { "cite": "322 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517410 ], "year": 1988, "pin_cites": [ { "page": "635-36", "parenthetical": "authorizing conditional use permitting in North Carolina" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0611-01" ] }, { "cite": "347 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776226, 4773993, 4779341, 4777006, 4779249 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0703-04", "/nc/317/0703-01", "/nc/317/0703-05", "/nc/317/0703-02", "/nc/317/0703-03" ] }, { "cite": "342 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "547" }, { "page": "547" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524186 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0438-01" ] }, { "cite": "419 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "332 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504418, 2504101, 2503823, 2506550, 2507231 ], "year": 1992, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0150-01", "/nc/332/0150-05", "/nc/332/0150-04", "/nc/332/0150-02", "/nc/332/0150-03" ] }, { "cite": "413 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "309", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523147 ], "year": 1992, "pin_cites": [ { "page": "361", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0354-01" ] }, { "cite": "95 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "245 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603498 ], "year": 1956, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0059-01" ] }, { "cite": "837 F.2d 178", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1773256 ], "opinion_index": 0, "case_paths": [ "/f2d/837/0178-01" ] }, { "cite": "652 F.Supp 312", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3993292 ], "year": 1987, "pin_cites": [ { "page": "323-24" } ], "opinion_index": 0, "case_paths": [ "/f-supp/652/0312-01" ] }, { "cite": "95 L. Ed. 1019", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1951, "pin_cites": [ { "parenthetical": "reviewing the basis for conferring immunity on state legislators" }, { "page": "1025-26" } ], "opinion_index": 0 }, { "cite": "341 U.S. 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148214 ], "weight": 2, "year": 1951, "pin_cites": [ { "parenthetical": "reviewing the basis for conferring immunity on state legislators" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/us/341/0367-01" ] }, { "cite": "438 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769196 ], "weight": 2, "year": 1978, "pin_cites": [ { "parenthetical": "legislators, like judges, are entitled to absolute immunity \"because of the special nature of their responsibilities\"" }, { "parenthetical": "legislators, like judges, are entitled to absolute immunity \"because of the special nature of their responsibilities\"" } ], "opinion_index": 0, "case_paths": [ "/us/438/0478-01" ] }, { "cite": "440 U.S. 391", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183024 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "\"to an extent that the evidence discloses that [regional land use officials] were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity\"" }, { "parenthetical": "\"to an extent that the evidence discloses that [regional land use officials] were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity\"" } ], "opinion_index": 0, "case_paths": [ "/us/440/0391-01" ] }, { "cite": "631 F.2d 272", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10589608 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/f2d/631/0272-01" ] }, { "cite": "716 F.2d 1409", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1890808 ], "weight": 3, "pin_cites": [ { "page": "1422" }, { "page": "1423" } ], "opinion_index": 0, "case_paths": [ "/f2d/716/1409-01" ] }, { "cite": "523 U.S. 44", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503146 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/0044-01" ] }, { "cite": "494 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0410-01", "/nc/347/0410-04", "/nc/347/0410-05", "/nc/347/0410-02", "/nc/347/0410-03" ] }, { "cite": "468 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "121 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920344 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0779-01" ] }, { "cite": "37 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1946, "pin_cites": [ { "page": "133", "parenthetical": "\"a property owner whose property is affected by [a] proposed [zoning] change may seek review\"" } ], "opinion_index": 0 }, { "cite": "226 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613807 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0107-01" ] }, { "cite": "209 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)" } ], "opinion_index": 0 }, { "cite": "286 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "year": 1974, "pin_cites": [ { "parenthetical": "citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)" } ], "opinion_index": 0 }, { "cite": "202 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "809", "parenthetical": "citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555008 ], "year": 1974, "pin_cites": [ { "page": "678", "parenthetical": "citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0675-01" ] }, { "cite": "148 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "277", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "267 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559295 ], "year": 1966, "pin_cites": [ { "page": "356", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0353-01" ] }, { "cite": "325 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522170 ], "year": 1985, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0123-01" ] }, { "cite": "471 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798851, 798883, 798950, 798797, 798783 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0309-05", "/nc/343/0309-04", "/nc/343/0309-01", "/nc/343/0309-03", "/nc/343/0309-02" ] }, { "cite": "465 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "343", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. 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App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525158 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0271-01" ] } ], "analysis": { "cardinality": 1095, "char_count": 27372, "ocr_confidence": 0.752, "pagerank": { "raw": 2.4560654893069514e-07, "percentile": 0.8050448114928708 }, "sha256": "ff3aa8ad231cfb1411358cd25e005374650dc00523d38fea2adf1ddaa531a5cf", "simhash": "1:87a4456a957b2e76", "word_count": 4359 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and HUNTER concur." ], "parties": [ "W. CARROLL STEPHENSON, JR., Plaintiff v. TOWN OF GARNER, a Municipal Corporation, RONNIE WILLIAMS, JACKIE JOHNS, SR., and JOHN ADAMS, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nIn reviewing the trial court\u2019s dismissal of Stephenson\u2019s claims under Rules 12(b)(6) or 12(c), we evaluate all facts alleged and permissible inferences therefrom in the light most favorable to Stephenson. Shuford, N.C. Practice and Procedure, \u00a7\u00a7 12-8, 12-10. If the facts as alleged by the plaintiff do not either (1) give rise to any claim upon which relief may be granted, Shuford, \u00a7 12-8, citing Andrews v. Elliot, 109 N.C. App. 271, 426 S.E.2d 430 (1993), or (2) show that the nonmoving party is entitled to judgment as a matter of law, Shuford, \u00a7 12-10, citing Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974), then we must affirm the trial court.\nWe first address whether the trial court properly dismissed plaintiff\u2019s Chapter 75 unfair trade practices claims. Stephenson argues that (1) the aldermen\u2019s \u201cinducement\u201d of Sprint to enter into the Garner-Sprint Lease by denying Sprint\u2019s CUP petitions \u201cin violation of a court order\u201d and (2) the town\u2019s execution of the Garner-Sprint Lease constitute \u201c[unlawful] unfair . . . acts or practices in or affecting commerce.\u201d G.S. \u00a7 75-1.1. We disagree.\nStephenson argues that the aldermen\u2019s \u201cintentional violation of a court order\u201d by denying Sprint\u2019s CUP application on rehearing was also a violation of public policy, establishing the aldermen\u2019s actions as \u201cunfair\u201d under G.S. \u00a7 75-1.1. Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403-04 (1981). Viewing the facts in the light most favorable to the plaintiff, we do not agree that Judge Farmer\u2019s order compelled the aldermen to approve Sprint\u2019s CUP petition, making the aldermen\u2019s second denial of Sprint\u2019s petition an illegal act. Based on \u201csubstantial, competent and material evidence\u201d in the record of the first CUP hearing, Judge Farmer concluded that the town\u2019s denial of Sprint\u2019s application was \u201carbitrary and capricious,\u201d but instead of ordering that the CUP be approved, Judge Farmer\u2019s order reversed the aldermen\u2019s first decision and remanded the matter to the board \u201cfor further proceedings in accordance with . . . judgment.\u201d We conclude that the aldermen complied with the court\u2019s judgment by holding \u201cfurther proceedings,\u201d during which additional testimony and newspaper articles not previously considered by Judge Farmer were introduced. Because (1) the May 1995 consent judgment precluded a final ruling on Sprint\u2019s Motion to Compel approval based on evidence presented in the first hearing and (2) Judge Farmer never ruled on the sufficiency of the new evidence in support of the aldermen\u2019s second denial of Sprint\u2019s CUP application, we find no clear violation of Judge Farmer\u2019s order and uphold the trial court\u2019s dismissal of the Chapter 75 claims against the aldermen.\nAs to the Chapter 75 unfair trade practices claim against the town, we held in Rea Construction Co. v. City of Charlotte, 121 N.C. App. 369, 465 S.E.2d 342, disc. rev. denied, 343 N.C. 309, 471 S.E.2d 75 (1996), that because the State is immune to Chapter 75 claims \u201cregardless of whether sovereign immunity may exist,\u201d Sperry Corp. v. Patterson, 73 N.C. App. 123, 125, 325 S.E.2d 642, 644 (1985), and cities and towns are \u201cagenc[ies] created by the State,\u201d State v. Furio, 267 N.C. 353, 356, 148 S.E.2d 275, 277 (1966) (emphasis added), \u201cin accord with Sperry,... a city may not be sued under Chapter 75.\u201d Rea Construction, 121 N.C. App. at 370, 465 S.E.2d at 343 (emphasis added). Under Rea Construction, dismissal of the claim against the town was proper.\nWe next decide whether the court properly dismissed Stephenson\u2019s claims of interference with contractual relations against the aldermen and the town.\nDefendants first argue that Stephenson lacks standing to bring an interference with contract claim against either the town or the aider-men. Specifically, defendants argue that because Sprint, as a \u201cmere optionee,\u201d lacked the requisite standing as an \u201caffected\u201d property owner to appeal the aldermen\u2019s first denial of its CUP application, Sprint\u2019s appeal to Wake County Superior Court was improvidently granted. Humble Oil & Refining Co. v. Board of Aldermen of the Town of Chapel Hill, 20 N.C. App. 675, 678, 202 S.E.2d 806, 809, rev\u2019d on other grounds, 286 N.C. 10, 209 S.E.2d 447 (1974) (citing Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)). Defendants further argue that because Stephenson failed to file his own CUP application or appeal the aldermen\u2019s decision on Sprint\u2019s CUP application, he is precluded here from asserting \u201cany claims he may have had regarding the denial of the conditional use permit.\u201d See G.S. \u00a7 160A-388(e) (providing for review of conditional use permitting decisions by any \u201caggrieved\u201d party); Lee, 226 N.C. at 113, 37 S.E.2d at 133 (\u201ca property owner whose property is affected by [a] proposed [zoning] change may seek review\u201d).\nWe note that Stephenson appears to concede the standing issue as to his claim against the aldermen when he states in his brief that \u201c[i]f the defendants\u2019 mistreatment of Sprint had simply died without the Town of Garner usurping Stephenson\u2019s lease, it is debatable whether or not Stephenson would have had standing to seek damages for the loss of his lease income.\u201d\nEven assuming arguendo that Stephenson does not concede the standing issue, we hold that when viewed in the light most favorable to the plaintiff, the facts support dismissal on grounds that the aider-men enjoyed legislative immunity to suit. Vereen v. Holden, 121 N.C. App. 779, 468 S.E.2d 471 (1996), disc. rev. denied, 347 N.C. 410, 494 S.E.2d 600 (1997). Officials may claim legislative immunity for action taken \u201cin the sphere of legislative activity.\u201d See Bogan v. Scott-Harris, 523 U.S. 44, 140 L.Ed.2d 79 (1998). To prove legislative immunity, a public official must show that (1) he was acting in a legislative (non-ministerial) capacity at the time of the alleged incident and (2) his acts were not illegal. Vereen, 121 N.C. App. at 782, 468 S.E.2d at 473 (citing Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir.1983). See also Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980)).\nThe question of whether local officials\u2019 actions are \u201clegislative\u201d depends on the nature of their acts. Scott at 1423; Bruce at 277-80, citing Lake Country Estates, Inc. v. Tahoe Regional Planning, 440 U.S. 391, 59 L. Ed. 2d 401 (1979) (\u201cto an extent that the evidence discloses that [regional land use officials] were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity\u201d); Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895 (1978) (legislators, like judges, are entitled to absolute immunity \u201cbecause of the special nature of their responsibilities\u201d); Tenny v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019 (1951) (reviewing the basis for conferring immunity on state legislators). While officials are not immune for acts outside the scope of their legislative duties, Scott, 716 F.2d at 1423, and arguably may claim only qualified immunity for \u201cexecutive\u201d acts (such as enforcement of zoning laws), id., absolute immunity is available when officials, in the exercise of legitimate functions under state and local law, act in a \u201clegislative capacity,\u201d Pendleton Construction Corp. v. Rockbridge County, 652 F.Supp 312, 323-24 (W.D. Va. 1987), aff'd, 837 F.2d 178 (4th Cir.1988); Bruce, 632 F.2d at 279. So long as the acts are legislative in nature, immunity may extend to \u201cvot[ing], . . . and . . . every other act resulting from the nature, and in the execution, of the office.\u201d Bruce, 631 F.2d at 280, citing Tenny, 341 U.S. at 374, 95 L. Ed. at 1025-26.\nStephenson argues that (1) conditional use permitting is a ministerial act and (2) \u201ceven if the first denial of Sprint\u2019s application was not ministerial,\u201d Judge Farmer\u2019s decision transformed the rehearing of Sprint\u2019s CUP application into a ministerial act of approval. We disagree.\nConditional use permitting is not, as plaintiff alleges, a ministerial process akin to \u201cputting a square peg in a square hole.\u201d Ministerial acts are those in which \u201cnothing is left to discretion.\u201d Langley v. Taylor, 245 N.C. 59, 62, 95 S.E.2d 115, 117 (1956); Black\u2019s Law Dictionary 1011 (7th ed. 1999). Under G.S. \u00a7 160A-381 (granting towns the power to adopt CUP ordinances), local zoning officials may not \u201cdeny applicants a permit in their unguided discretion or . . . refuse it solely because, in their view, [it] would \u2018adversely affect the public interest.\u2019 \u201d Triple E Assoc. v. Town of Matthews, 105 N.C. App. 354, 361, 413 S.E.2d 305, 309, disc. rev. denied, 332 N.C. 150, 419 S.E.2d 578 (1992) (emphasis added). However, our courts have held that a town zoning board sits as a \u201ctrier of fact,\u201d Ghidorzi Construction, Inc. v. Town of Chapel Hill, 80 N.C. App. 438, 440, 342 S.E.2d 545, 547, disc. rev. denied, 317 N.C. 703, 347 S.E.2d 41 (1986), and is vested with \u201cindependent decision-making authority\u201d to balance the petitioner\u2019s interest in subjecting his or her land to a particular use against his neighbors\u2019 interest in maintaining harmony of use throughout the community. Chrismon v. Guilford County, 322 N.C. 611, 635-36, 370 S.E.2d 579, 593-94 (1988) (authorizing conditional use permitting in North Carolina); see also Alexander v. Holden, 66 F.3d 62, 66 (4th Cir. 1995) (\u201c [i]f the underlying facts \u2018relate to particular individuals or situations\u2019 and the decision impacts specific individuals or \u2018singles out specifiable individuals,\u2019 the decision is administrative. On the other hand, the action is legislative if the facts involve \u2018generalizations concerning a policy or state of affairs\u2019 and the \u2018establishment of a general policy\u2019 affecting the larger population\u201d). Where the evidence pertaining to a CUP application reveals \u201ctwo reasonably conflicting views,\u201d neither the Superior Court nor this Court may supplant the judgment of local zoning officials. Ghidorzi, 80 N.C. App. at 440, 342 S.E.2d at 547.\nWe conclude that conditional use permitting requires the exercise of substantial discretion on the part of local officials in deciding important community-wide land use policies, and is therefore legislative in nature. Moreover, since Judge Farmer\u2019s decision did not preclude the aldermen from holding \u201cfurther hearings\u201d or compel them to approve Sprint\u2019s petition, the decision neither changed the legislative nature of the aldermen\u2019s acts nor made them illegal. Because the aldermen may claim legislative immunity to suits arising out of their denial of Sprint\u2019s CUP petition, we hold that dismissal was proper as to the aldermen.\nWe note that defendants also contend that the trial court properly dismissed this claim as to the aldermen because plaintiff failed to comply with the requirement of specificity in pleading set out in Mullis v. Securest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25 (1998) (when officials are sued in their individual capacities, a statement of the capacity in which they are being sued must be included in the caption, the allegations, and the prayer for relief). Stephenson contends that because the opinion in Mull\u00eds was filed three days after their complaint, he was not bound by its holding. We disagree, because Stephenson could have cured any deficiency by amending his complaint. See id. (\u201c[although the defense of immunity had been raised ... plaintiffs did not attempt to amend their complaint to specify the capacity in which they were suing\u201d). Moreover, in reviewing prior applicable law, the Mull\u00eds court noted that:\nThe crucial question for determining whether a defendant is sued in an individual or official capacity is the nature of the relief sought, not the nature of the act or omission alleged. If the plaintiff seeks an injunction requiring the defendant to take an action involving the exercise of a governmental power, the defendant is named in an official capacity. If money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant. If the former, it is an official-capacity claim; if the latter, it is an individual-capacity claim; and if it is both, then the claims proceed in both capacities.\u201d\nId. at 552, 495 S.E.2d at 723 (citing Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997)). After careful review of the record, we conclude that here the plaintiff seeks monetary damages only from the government and the aldermen acting in their official capacities. See id. at 554, 495 S.E.2d at 725. Accordingly, even if the trial court could not dismiss Stephenson\u2019s claim based on the lack of specificity in the pleadings, Mull\u00eds limits Stephenson to claims against the aider-men in their official capacities. We have already determined that the aldermen\u2019s official acts are protected by legislative immunity under Vereen and that dismissal was proper.\nWe now consider whether the court properly dismissed the interference with contract claim against the town.\nUnlike the claim against the aldermen, which is based on their denial of a CUP petition, Stephenson alleges that the town interfered with his contract rights by executing the Garner-Sprint Lease, thereby usurping his stream of income from the Stephenson-Sprint Lease. We first note that since execution of the Garner-Sprint Lease was not part of the CUP process, Stephenson has standing to bring this claim against the town. The remaining issues raised by the parties\u2019 briefs are (1) whether the Garner-Sprint Lease was legal; (2) whether plaintiff has stated a valid claim of interference with contract or prospective contract against the town, and if so, (3) whether the town may claim governmental immunity to Stephenson\u2019s suit. While we do not determine the legality of the Garner-Sprint Lease, we reverse the trial court\u2019s dismissal of Stephenson\u2019s claim of interference with prospective contract against the town.\nStephenson did not allege in his complaint that the Garner-Sprint Lease was illegal under G.S. \u00a7 160A-272. Because this issue was not addressed by the trial court and is not properly before us, we decline to address it. N.C. R. App. P. 10(b)(1).\nTo survive defendants\u2019 Rule 12(b)(6) and 12(c) motions, Stephenson\u2019s complaint must forecast that:\n(1) a valid contract between the plaintiff and a third person . . . conferred] upon the plaintiff a contractual right against a third person; (2) defendant kn[ew] of the contract; (3) the defendant intentionally induc[ed] the third person not to perform the contract; (4) and in doing so act[ed] without justification; (5) resulting in actual damage to the plaintiff.\nEmbree Construction Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992). Defendants argue that on the face of the claim, Stephenson has failed to satisfy the first element of interference with contract.\nWe note that Stephenson alleges violation of two distinct contract rights: (1) the right to income under an option contract in existence at the time the Gamer-Sprint Lease was executed, and (2) the right to future income under the Stephenson-Sprint Lease, had the town eventually approved Sprint\u2019s GUP petition. As to the former claim, defendants correctly argue that because the Stephenson-Sprint Lease was an option contract, Stephenson had no contract rights at the time the Garner-Sprint Lease was executed. Rice v. Wood, 82 N.C. App. 318, 328, 346 S.E.2d 205, 211, disc. rev. denied, 318 N.C. 417, 349 S.E.2d 599 (1986). Therefore, the first element of interference with contract was not met.\nHowever, as to the latter claim, plaintiff\u2019s claim of interference with prospective contract survives where the evidence shows that defendants\u2019 interference \u201cprevented] the making of a contract . . . with design . . . [of] gaining some advantage at [plaintiff\u2019s] expense.\u201d Owens v. Pepsi Cola Bottling Co. of Hickory, N.C., Inc., 330 N.C. 666, 680-81, 412 S.E.2d 636, 644-45 (1992) (overcoming summary judgment); Coleman v. Whisnant, 225 N.C. 494, 506, 35 S.E.2d 647, 656 (1945) (plaintiff overcame demurrer on evidence showing that \u201cbut for\u201d defendants\u2019 interference, the contract would have been made). Here, Stephenson alleges in his complaint that \u201cdefendants\u2019 . . . usurpation of the stream of lease income ... by the Garner Lease constitutes wrongful interference with... prospective contract.\u201d The evidence shows that the town executed the Gamer-Sprint Lease prior to Sprint\u2019s argument of its Motion to Compel approval of its CUP application. The town argues that these facts show, at most, the town\u2019s desire to prevent further litigation regarding Sprint\u2019s CUP Application. We agree that this is a possible inference, but not the only permissible inference. Viewing the facts and all reasonable permissible inferences therefrom in the light most favorable to Stephenson, it is also reasonable to infer that (1) the specter of protracted litigation presented the town with an opportunity to lease the top of its water tower to Sprint and (2) the execution of the Garner-Sprint Lease may have prompted Sprint\u2019s decision not to exercise its option under the Stephenson-Sprint Lease. In its brief, the town does not challenge whether Stephenson met the remaining elements of Stephenson\u2019 claim. Accordingly, we hold that Stephenson has sufficiently stated a claim for interference with prospective contract against the town.\nIn deciding whether a governmental entity may claim immunity from suit, we must first determine whether the nature of the complained-of act is proprietary or governmental. Rich v. City of Goldsboro, 282 N.C. 383, 385, 192 S.E.2d 824, 826 (1972),- see generally, Morris and Daye, North Carolina Law of Torts, \u00a7 19.42.31-32. Baucom\u2019s Nursery v. Mecklenburg County, 89 N.C. App. 542, 366 S.E.2d 558, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 274 (1988), cited by the town, is inapplicable because the execution of a lease, unlike the enactment and enforcement of zoning laws, is not an exercise of \u201cpolice powers\u201d delegated to the town by the State. Id. at 544, 366 S.E.2d at 560 (extending immunity to both the county and the board of commissioners). The better rule is found in Lewis v. City of Washington, 63 N.C. App. 552, 305 S.E.2d 752, rev\u2019d on other grounds, 309 N.C. 818, 310 S.E.2d 610 (1983), in which we held that leasing property under G.S. \u00a7 160A-272, unlike zoning, is a proprietary activity. Pursuant to Lewis, we hold that the rule of governmental immunity does not bar Stephenson\u2019s claim against the town because the town\u2019s execution of a lease of town property was proprietary in nature.\nIn summary, we hold that the court properly dismissed Stephenson\u2019s Chapter 75 claims and his claim of interference with contract against the aldermen. We reverse the order of the trial court dismissing Stephenson\u2019s interference with contract claim against the town and remand the case for further proceedings in accordance with this decision.\nAffirmed in part and reversed in part.\nJudges JOHN and HUNTER concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for plaintiff-appellant.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L. Eatman, Jr. and Holly L. Saunders, for defendant-appellees." ], "corrections": "", "head_matter": "W. CARROLL STEPHENSON, JR., Plaintiff v. TOWN OF GARNER, a Municipal Corporation, RONNIE WILLIAMS, JACKIE JOHNS, SR., and JOHN ADAMS, Defendants\nNo. COA99-43\n(Filed 1 February 2000)\n1. Zoning\u2014 conditional use permits \u2014 unfair trade practices claims \u2014 aldermen\nThe trial court did not err by dismissing plaintiffs Chapter 75 unfair trade practices claims against the Garner aldermen, based on their alleged inducement of Sprint to enter into the Garner-Sprint Lease by denying Sprint\u2019s conditional use permit (CUP) petition seeking to place a cellular tower on plaintiffs property, and the town\u2019s subsequent execution of the Garner-Sprint Lease, because: (1) the trial court\u2019s order did not compel the aldermen to approve Sprint\u2019s CUP petition based on evidence from the first hearing, but instead remanded the matter to the board for further proceedings; and (2) the trial court never ruled on the sufficiency of the new evidence in support of the aldermen\u2019s second denial of Sprint\u2019s CUP application.\n2. Zoning\u2014 conditional use permits \u2014 unfair trade practices claims \u2014 town\nThe trial court did not err by dismissing plaintiff\u2019s Chapter 75 unfair trade practices claims against the Town of Garner, based on its alleged inducement of Sprint to enter into the Garner-Sprint Lease by denying Sprint\u2019s conditional use permit (CUP) petitions seeking to place a cellular tower on plaintiff\u2019s property, and the town\u2019s subsequent execution of the Garner-Sprint Lease, because a city or town may not be sued under Chapter 75.\n3. Zoning\u2014 conditional use permits \u2014 interference with contractual relations \u2014 aldermen\u2014legislative immunity\nThe trial court did not err in dismissing plaintiff\u2019s claims of interference with contractual relations against the Garner aldermen based on their denial of a conditional use permit because the aldermen may claim legislative immunity since: (1) conditional use permitting requires the exercise of substantial discretion on the part of local officials in deciding important community-wide land use policies; and (2) even if the trial court could not dismiss plaintiff\u2019s claim based on the lack of specificity in the pleadings, plaintiff only seeks monetary damages from the government and the aldermen acting in their official capacities.\n4. Zoning\u2014 conditional use permits \u2014 interference with contractual relations \u2014 town\nAlthough plaintiff could not allege a claim for interference with contractual relations against the Town of Gamer based on the right to income under an option contract in existence at the time the Garner-Sprint Lease was executed since plaintiff had no contract rights at the time the Gamer-Sprint Lease was executed, the trial court erred in dismissing plaintiff\u2019s claim of interference with contractual relations against the Town based on plaintiffs right to future income under the Stephenson-Sprint Lease, had the Town eventually approved Sprint\u2019s conditional use permit, because viewing the facts in the light most favorable to plaintiff reveals: (1) the possibility of protracted litigation presented the Town with an opportunity to lease the top of its water tower to Sprint; (2) the execution of the Garner-Sprint Lease may have prompted Sprint\u2019s decision not to exercise its option under the Stephenson-Sprint Lease; and (3) the Town cannot claim governmental immunity since the execution of a lease, unlike the enactment and enforcing of zoning laws, is not an exercise of \u201cpolice powers\u201d delegated to the Town by the State.\nAppeal by plaintiff from order entered 23 November 1998 by Judge Henry V. Barnette, Jr. in Wake County Superior Court. Heard in the Court of Appeals 15 November 1999.\nIn April of 1994, plaintiff-appellant Stephenson (Stephenson) contracted with Sprint Cellular Company (Sprint) for an option to lease to Sprint a portion of Stephenson\u2019s land for the location of a cellular tower (the Stephenson-Sprint Lease). The option was conditioned on a grant of a conditional use permit (CUP) from defendant-appellee Town of Garner (the town). A CUP must be approved by a majority of the defendant-appellees Board of Aldermen (the aldermen).\nOn 1 June 1994, Sprint filed a CUP application with the town. At a 19 June 1994 hearing, three Gamer residents opposed to the proposed tower expressed their concern that the tower would endanger public health and safety and would not be in harmony with the area in which it was to be located. In support of their application, Sprint presented expert testimony and exhibits showing that the tower posed no substantial danger to public health and safety, would not materially affect local property values, would be in harmony with the surrounding community and would conform with all relevant land use ordinances. On 1 August 1994, the aldermen concluded that the proposed use was not in harmony with the surrounding neighborhood and denied Sprint\u2019s CUP application by a 3-2 vote. On 22 February 1995, Sprint filed a petition for judicial review in Wake County Superior Court. On 3 March 1995, Superior Court Judge Robert Farmer found that (1) the aldermen\u2019s denial (based on the testimony of the three Garner residents) was arbitrary and capricious and (2) Sprint\u2019s evidence was \u201ccompetent and substantial\u201d to support an issuance of a CUP. Judge Farmer therefore remanded the case to the aldermen for \u201cfurther proceedings in accordance with . . . judgment.\u201d\nThe same day, Garner\u2019s attorney wrote to interested landowners that the town would not appeal Judge Farmer\u2019s decision because (1) Judge Farmer was justified in concluding that there was \u201cnot a substantial weight of technical evidence in opposition\u201d to the CUP and (2) \u201cif another hearing were held on the subject, the evidence would be pretty much what it was in the [original CUP] hearing.\u201d\nOn 3 April 1995, the aldermen again held hearings on the Sprint\u2019s CUP application, taking additional testimony from neighbors as to the adverse effects of the tower on neighborhood aesthetics and allowing the introduction of newspaper articles about electromagnetic fields. Sprint presented evidence (similar to that presented at the prior CUP hearing) that the proposed tower posed no health or safety risks whatsoever to the surrounding community. Following this second hearing, the aldermen again denied Sprint\u2019s application by a 3-2 vote.\nOn 13 April 1995, Sprint filed a Motion to Compel approval of the Sprint\u2019s CUP application in Wake County Superior Court, arguing that (1) the aldermen\u2019s actions were contrary to the town\u2019s land use ordinance and in direct defiance of Judge Farmer\u2019s order and (2) Sprint was losing $2000 for every day that they lacked a CUP. The town responded to Sprint\u2019s motion by offering to settle the matter by locating Sprint\u2019s cellular tower on top of the town water tower. On 1 May Sprint agreed to lease the top of the water tower (the Gamer-Sprint Lease). Sprint\u2019s litigation with the town was subsequently ended by a consent judgment entered 4 May 1995.\nOn 3 February 1998 Stephenson filed the instant action against the town and the aldermen alleging that the aldermen and the town conspired to force Sprint to abandon the Stephenson-Sprint Lease and enter into the Garner-Sprint Lease. The Garner-Sprint Lease names only the Town of Garner as lessor, and Stephenson does not allege in his complaint that the aldermen approved the Garner-Sprint lease. Stephenson argues that defendants\u2019 conduct constitutes (1) interference with contractual relations between Stephenson and Sprint and (2) unfair and deceptive trade practices.\nIn their answer, defendants moved to dismiss pursuant to N.C. R. Civ. P. 12(b)(6), denied Stephenson\u2019s allegations and asserted, in pertinent part, (1) that Stephenson lacked standing to appeal the denial of Sprint\u2019s CUP application; (2) that the aldermen and board were immune to suit; and (3) that Stephenson failed to prove that he suffered a legal harm or, if plaintiff had been harmed, that his injuries were not proximately caused by defendants. Thereafter, defendants moved to dismiss pursuant to N.C. R. Civ. P. 12(c).\nFollowing a change of venue from Johnston County to Wake County Superior Court, the trial court granted defendants\u2019 motions to dismiss. Plaintiff Stephenson appeals.\nArmstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for plaintiff-appellant.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L. Eatman, Jr. and Holly L. Saunders, for defendant-appellees." }, "file_name": "0444-01", "first_page_order": 478, "last_page_order": 488 }