{ "id": 8956358, "name": "ALICE MONROE NELSON, LINDA L. MONROE, R.B. MONROE KELLY, JULIAN D. KELLY JR., MOYNA MONROE, ALICE BLANC MONROE NELSON and husband L. KENT NELSON, BUNROTHA LIMITED PARTNERSHIP, KATALANTA CORP., KATHRYN B. HEDRICKS, SUSAN B. INMAN, SAMUEL N. EVINS, JR., WALTER P. EVINS, MARGARET EARLY, MARY PRESSLEY, SIDNEY McCARTY, III, MILDRED JOHNSON, JOHN HENRY CHEATHAM, Trustee of the Liela Barnes Cheatham North Carolina Residence Trust, Plaintiffs v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant MICHAEL WENTZ, Plaintiff v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant", "name_abbreviation": "Nelson v. Town of Highlands", "decision_date": "2003-08-05", "docket_number": "No. COA02-619", "first_page": "393", "last_page": "400", "citations": [ { "type": "official", "cite": "159 N.C. App. 393" } ], "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": "557 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138403, 138376, 138473, 138511, 138363 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0371-02", "/nc/354/0371-04", "/nc/354/0371-05", "/nc/354/0371-01", "/nc/354/0371-03" ] }, { "cite": "551 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8525602 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0601-01" ] }, { "cite": "267 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575936, 8575907, 8575876, 8575890, 8575922 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0735-05", "/nc/299/0735-03", "/nc/299/0735-01", "/nc/299/0735-02", "/nc/299/0735-04" ] }, { "cite": "261 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "44 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553638 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/44/0469-01" ] }, { "cite": "361 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726403, 4731173, 4724745, 4725229, 4724083 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0798-02", "/nc/320/0798-03", "/nc/320/0798-05", "/nc/320/0798-01", "/nc/320/0798-04" ] }, { "cite": "355 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. 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App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] }, { "cite": "355 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "369 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "90 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525602 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc-app/90/0601-01" ] }, { "cite": "261 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "44 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553638 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/44/0469-01" ] }, { "cite": "85 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169945 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc-app/85/0382-01" ] } ], "analysis": { "cardinality": 752, "char_count": 17313, "ocr_confidence": 0.763, "pagerank": { "raw": 2.2907564689206516e-07, "percentile": 0.7862284635127376 }, "sha256": "0a8d012b6af52b6ce75972198556aff37d786d76e7700ec3e4d598a749ee5827", "simhash": "1:4210fd7b767b6c52", "word_count": 2778 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge HUDSON dissents." ], "parties": [ "ALICE MONROE NELSON, LINDA L. MONROE, R.B. MONROE KELLY, JULIAN D. KELLY JR., MOYNA MONROE, ALICE BLANC MONROE NELSON and husband L. KENT NELSON, BUNROTHA LIMITED PARTNERSHIP, KATALANTA CORP., KATHRYN B. HEDRICKS, SUSAN B. INMAN, SAMUEL N. EVINS, JR., WALTER P. EVINS, MARGARET EARLY, MARY PRESSLEY, SIDNEY McCARTY, III, MILDRED JOHNSON, JOHN HENRY CHEATHAM, Trustee of the Liela Barnes Cheatham North Carolina Residence Trust, Plaintiffs v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant MICHAEL WENTZ, Plaintiff v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiffs own property along Bowery Road within the corporate limits of defendant Town of Highlands (\u201cdefendant\u201d or \u201cHighlands\u201d). On 31 August 2001, defendant issued to plaintiffs notices of condemnation pursuant to N.C. Gen. Stat. \u00a7 40A-40 (2001) indicating its intent to initiate actions to condemn portions of plaintiffs\u2019 property for the purpose of widening and paving Bowery Road. These notices stated that defendant intended to file its action for condemnation on 1 October 2001, and specifically informed plaintiffs of their \u201cright to commence an action . . . for injunctive relief.\u201d\nPlaintiffs Alice Monroe Nelson, et al., filed an action on 28 September 2001 (01 CVS 472) seeking to enjoin defendant from condemning plaintiffs\u2019 property. Plaintiff Michael Wentz filed an action on 2 October 2001 (01 CVS 475) also seeking to enjoin defendant\u2019s condemnation of his property. Plaintiffs\u2019 complaints essentially contained nine claims: (1) notices of condemnation given plaintiffs by defendant were deficient under N.C. Gen. Stat. \u00a7 40A-40; (2) the Highlands governing board did not properly authorize the undertaking of the condemnation; (3) the property to be condemned was registered with the National Register of Historic Places, and a reasonable alternative for condemnation existed which did not include the historic property; (4) the condemnation was not for a proper public purpose; (5) the condemnation was to be financed unlawfully through a private escrow account containing funds solicited by defendant based on misrepresentations that contributions were tax deductible; (6) the terms and conditions of the escrow had not been met to allow the condemnation to proceed; (7) the escrow further was unlawful in that it provided for the payment of attorneys\u2019 fees for private parties out of funds contributed to defendant as a municipal corporation; (8) the condemnation proceeding constituted an abuse of discretion by defendant; and (9) defendant failed to perform required archeological and environmental investigations and impact studies of the property to be condemned. Plaintiffs prayed that defendant \u201cbe permanently enjoined from condemning or otherwise altering the property of the [p]laintiffs.\u201d\nOn 4 October 2001, defendant filed twelve separate condemnation actions against plaintiffs and other owners of property along Bowery Road.\nIn December 2001, the two actions against defendant seeking injunctive relief were heard as a single matter by the Macon County Superior Court. On 15 January 2002, the trial court granted defendant\u2019s motion to dismiss under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2001) for failure to state a claim upon which relief may be granted. Plaintiffs appeal the trial court\u2019s granting of defendant\u2019s motion to dismiss.\nThe issue presented in the instant case is whether plaintiffs have a right under N.C. Gen. Stat. Chapter 40A to institute an action for injunctive relief to prevent defendant from proceeding with the condemnation of their property.\nOn appeal from a grant of a motion to dismiss, this Court must determine \u201cwhether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.\u201d Harris v. NCNB Nat\u2019l Bank, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). An action may be dismissed for failure to state a claim if no law supports the claim, if sufficient facts to state a good claim are absent, or if a fact is asserted that defeats the claim. Shell Island Homeowners Ass\u2019n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406 (1999).\nIt is established law in North Carolina that an injunction is an equitable remedy and where \u201cthere is a full, complete, and adequate remedy at law, the equitable remedy of injunction will not lie.\u201d Pelham Realty Corp. v. Bd. of Transp., 303 N.C. 424, 432, 279 S.E.2d 826, 831 (1981). N.C. Gen. Stat. \u00a7 40A-42 provides in part that \u201c[ujnless an action for injunctive relief has been initiated, title to the property specified in the [condemnation] complaint, together with the right to immediate possession thereof, shall vest in the con-demnor upon the filing of the complaint and the making of the deposit in accordance with G.S. 40A-41.\u201d N.C. Gen. Stat. \u00a7 40A-42(a)(1) (2001). In condemnation actions commenced under N.C. Gen. Stat. \u00a7 40A-42(a), the condemnor is required to provide notice to landowners of its intent to initiate an action to condemn the property 30 days prior to filing the condemnation complaint. N.C. Gen. Stat. \u00a7 40A-40(a)-(b). \u201cThe notice shall contain a plain language summary of the owner\u2019s rights, including ... [t]he right to commence an action for injunctive relief.\u201d N.C. Gen. Stat. \u00a7 40A-40(b)(4).\nIn Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216, disc. review denied, 320 N.C. 798, 361 S.E.2d 91 (1987), the Town of Matthews (\u201cMatthews\u201d) certified a petition for voluntary annexation of five parcels of land owned by the Yandles on 8 October 1984. Id. at 384, 355 S.E.2d at 217. On 6 November 1984, after authorization by the Mecklenburg County Board of Commissioners, the County Manager mailed notices of the County\u2019s intent to condemn eight parcels of land, two of which were owned by the Yandles and were part of the petition for annexation. Id. at 384, 355 S.E.2d at 218. On 5 December 1984, the Yandles filed a civil action seeking a temporary restraining order, preliminary injunction and permanent injunction to prevent the County from condemning their land. Id. Two days later, on 7 December 1984, the County authorized the institution of condemnation proceedings against the Yandles\u2019 property and also sought a temporary restraining order, preliminary injunction and permanent injunction to prohibit Matthews from annexing the Yandle property. Id. at 385, 355 S.E.2d at 218.\nOn 31 December 1984, the trial court preliminarily enjoined the County from taking further steps to condemn the Yandles\u2019 property and preliminarily enjoined Matthews from further action on annexation of the Yandles\u2019 property. Id. On 21 July 1986, the case was tried without a jury to determine which party had the right to proceed in its actions on the Yandles\u2019 property. Id. The trial court concluded that because Matthews \u201ctook the first mandatory public procedural step\u201d by approving the Yandles\u2019 petition for voluntary annexation, Matthews could proceed with its annexation while the County was prohibited from further action to condemn the same property. Id. at 386, 355 S.E.2d at 219.\nOn appeal by the County, this Court considered the injunctive order entered in December 1984 as to the condemnation action. Relying on Centre Development Co. v. County of Wilson, 44 N.C. App. 469, 261 S.E.2d 275, disc. review denied and appeal dismissed, 299 N.C. 735, 267 S.E.2d 660 (1980), the Court in Yandle stated that landowners could not seek to enjoin a county from condemning their land in a court of equity if the owners had an adequate remedy at law. Id. at 389-90, 355 S.E.2d at 221. This Court noted that N.C. Gen. Stat. \u00a7 40A-1 \u201cprovides that the provisions of Chapter 40A shall be the \u2018exclusive condemnation procedures to be used in this State by... all local public condemnors,\u2019 \u201d and that N.C. Gen. Stat. \u00a7 40A-45 gives landowners the opportunity to assert affirmative defenses in an answer to the condemnation complaint. Id. at 390, 355 S.E.2d at 221. Because N.C. Gen. Stat. Chapter 40A provided the Yandles an opportunity to raise their pending annexation action, which sought to prevent the County from, condemning their land, in an answer to the County\u2019s condemnation complaint, the Yandle Court held they were afforded an adequate remedy at law by the statute and, therefore, were not entitled to injunctive relief. Id.\nIn Tradewinds Campground v. Town of Atlantic Beach, 90 N.C. App. 601, 369 S.E.2d 365, appeal dismissed and disc. review denied, 323 N.C. 180, 373 S.E.2d 126 (1988), the plaintiff received a notice on 13 July 1987 that the Town of Atlantic Beach (\u201cTown\u201d) intended to condemn its property. Id. at 601, 369 S.E.2d at 365. On 17 August 1987, the Town filed its complaint in the condemnation action. Id. Before it answered the complaint, the plaintiff filed an action for injunctive relief to prevent the condemnation. Id. On 14 December 1987, plaintiff filed an answer to the Town\u2019s condemnation complaint asserting the same defenses claimed in its action for injunctive relief. Id. at 603, 369 S.E.2d at 366. The trial court granted the Town\u2019s motion for judgment on the pleadings pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c) (2001) on the grounds that the relief sought could be raised as an affirmative defense in an answer to the Town\u2019s condemnation action. Id. at 601, 369 S.E.2d at 365.\nOn appeal to this Court, the Tradewinds plaintiff argued that N.C. Gen. Stat. \u00a7 40A-42(a), supra, granted \u201cit a statutory right to bring an action for injunctive relief to bar the condemnation proceeding and to prevent the title and the right to immediate possession of the property from vesting in defendant.\u201d Id. at 602, 369 S.E.2d at 365. This Court found that plaintiff had an adequate remedy at law under N.C. Gen. Stat. \u00a7 40A-45, which provides that a property owner whose land has been taken by the condemnor may file an answer to the condem-nor\u2019s complaint that includes \u201c \u2018affirmative defenses or matters as are pertinent to the action. . . .\u2019 \u201d Id. at 602-03, 369 S.E.2d at 366 (quoting N.C. Gen. Stat. \u00a7 40A-45). Citing Yandle, the Tradewinds Court held that the filing of an answer to the Town\u2019s complaint for condemnation gave the plaintiff an adequate remedy at law and that the plaintiff was not entitled to injunctive relief. Id. at 603, 369 S.E.2d at 366.\nWe have reviewed plaintiffs\u2019 substantive claims asserted in the complaints and find that each of these can be adequately addressed as affirmative defenses to the condemnation actions instituted by defendant. We recognize that the language of N.C. Gen. Stat. \u00a7 40A-42 provides some avenue of injunctive relief by limiting the right of immediate possession by the condemnor when \u201can action for injunc-tive relief has been initiated.\u201d N.C. Gen. Stat. \u00a7 40A-42(a)(1). We also acknowledge that N.C. Gen. Stat. \u00a7 40A-42(f) states that \u201c[t]he provisions of this section shall not preclude or otherwise affect any remedy of injunction available to the owner or the condemnor.\u201d However, we do not read the language of the statute as expanding the rights of landowners to seek injunctive relief in condemnation proceedings where an adequate remedy at law exists. There is no evidence that the General Assembly intended to overrule our well established case law regarding the availability of equitable relief. The language of the statute merely protects the right of landowners to seek \u201cany remedy of injunction available to the owner or the condemnor.\u201d N.C. Gen. Stat. \u00a7 40A-42(f) (emphasis added). Thus, the statute does not abrogate the remedy of injunction where there is no adequate remedy at law.\nAbsent evidence of an intent by the General Assembly to expand the right to seek equitable relief in condemnation proceedings, we hold that the statute\u2019s references to \u201cinjunctive relief\u2019 refer solely to instances where there is no adequate remedy at law. While Yandle and Tradewinds relied upon Centre Development, which was decided by this Court prior to the enactment of N.C. Gen. Stat. Chapter 40A, we do not believe the new statute was intended to provide additional equitable remedies in condemnation proceedings. Accordingly, Yandle and Tradewinds are controlling and constrain this right where the property owners are deemed to have an adequate remedy at law through the condemnation proceeding.\nWe are bound by this Court\u2019s previous decisions under the principle of stare decisis. Reid v. Town of Madison, 145 N.C. App. 146, 550 S.E.2d 826, disc. review allowed, 354 N.C. 365, 556 S.E.2d 576 (2001), review improvidently allowed, 355 N.C. 276, 559 S.E.2d 786 (2002). While \u201cthe doctrine of stare decisis is inapplicable where case law conflicts with a pertinent statutory provision to the contrary,\u201d Webb v. McKeel, 144 N.C. App. 381, 384, 551 S.E.2d 440, 442, disc. review denied, 354 N.C. 371, 557 S.E.2d 537 (2001), stare decisis will operate where the previous decision expressly considered the seemingly contrary statute, as this Court did in Yandle and Tradewinds.\nLike the landowners in Yandle, plaintiffs in the instant case filed an action for injunctive relief prior to the condemnor\u2019s filing of its condemnation action. Asserting their statutory right under N.C. Gen. Stat. \u00a7 40A-42(a)(l), plaintiffs requested a permanent injunction against defendant\u2019s condemnation of their property. The trial court\u2019s order granted defendant\u2019s motion to dismiss under Rule 12(b)(6) without prejudice to plaintiffs\u2019 raising the same defenses in the condemnation actions filed by defendant. Plaintiffs had the opportunity to present all affirmative defenses argued in their action for a permanent injunction during the condemnation proceedings, giving plaintiffs an adequate remedy at law. Judicial economy counsels against litigating the same issues in an injunctive relief setting and in a condemnation proceeding. Because we are bound by the Yandle and Tradewinds decisions, we hold that plaintiffs were not entitled to injunctive relief and their actions were properly dismissed.\nAFFIRMED.\nJudge McGEE concurs.\nJudge HUDSON dissents.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "HUDSON, Judge,\ndissenting.\nBecause I disagree with the application of the principle of stare decisis here, I respectfully dissent. The cases relied upon by the appellee and discussed in the majority opinion as binding include Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 382 (1987), and Tradewinds Campground, Inc. v. Town of Atlantic Beach, 90 N.C. App. 601, 369 S.E.2d 365 (1988). The Court in Tradewinds relied entirely on Yandle, which in turn relied primarily on Centre Development Co. v. County of Wilson, 44 N.C. App. 469, 261 S.E.2d 275 (1980), on the issue of whether the landowner may pursue injunctive relief. Because the statute upon which Centre Development relied was repealed the year following the decision, and the relevant subsection here was not mentioned in either Yandle or Tradewinds, I do not believe we are bound to follow those decisions.\nIn Centre Development, the issue before the Court was whether the landowner should have been permitted to pursue a claim for injunctive relief under the statutory provisions that existed at that time. The provisions that the Court held set forth an \u201cadequate remedy at law\u201d were found in Chapter 160A, Article 11, specifically N.C.G.S. \u00a7 \u00a7 160A-246 and 160A-255, neither of which mentioned injunctions at all. All of Article 11 of N.C.G.S \u00a7 160A was repealed by the General Assembly the following year and replaced with Chapter 40A. These revisions to the statutes on eminent domain refer specifically to the landowner\u2019s right to pursue injunctive relief. For example, N.C.G.S. \u00a7 \u00a7 40A-28(g) and 40A-42(f), which set forth the procedures, plainly state that \u201c[t]he provisions of this section shall not preclude or otherwise affect any remedy of injunction available to the owner or the condemnor.\u201d None of the cases relied upon by the majority mentions this section. It appears, therefore, that the General Assembly, in revising this chapter of the statutes, clearly intended to preserve the rights of all parties to pursue injunctive relief.\nFurther, in Yandle, the plaintiffs claim was not dismissed upon a Rule 12(b)(6) motion. Rather, the appeal followed a full trial on the merits. Here, the plaintiffs\u2019 allegations in their complaint are sufficient to set forth a claim for injunctive relief, and, consistent with the revised statute, I would reverse and remand for further proceedings.", "type": "dissent", "author": "HUDSON, Judge," } ], "attorneys": [ "Adams Hendon Carson Crow & Saenger, P.A., by Martin Reidinger and Cynthia Roelle, for plaintiffs-appellants.", "Coward Hicks & Siler, P.A., by William H. Coward for defendant-appellee." ], "corrections": "", "head_matter": "ALICE MONROE NELSON, LINDA L. MONROE, R.B. MONROE KELLY, JULIAN D. KELLY JR., MOYNA MONROE, ALICE BLANC MONROE NELSON and husband L. KENT NELSON, BUNROTHA LIMITED PARTNERSHIP, KATALANTA CORP., KATHRYN B. HEDRICKS, SUSAN B. INMAN, SAMUEL N. EVINS, JR., WALTER P. EVINS, MARGARET EARLY, MARY PRESSLEY, SIDNEY McCARTY, III, MILDRED JOHNSON, JOHN HENRY CHEATHAM, Trustee of the Liela Barnes Cheatham North Carolina Residence Trust, Plaintiffs v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant MICHAEL WENTZ, Plaintiff v. TOWN OF HIGHLANDS, a Municipal Corporation, Defendant\nNo. COA02-619\n(Filed 5 August 2003)\nCities and Towns\u2014 condemnation \u2014 injunctive relief\nThe trial court did not err by granting defendant town\u2019s motion to dismiss plaintiff property owners\u2019 actions seeking injunctive relief to prevent defendant from proceeding with the condemnation of plaintiffs\u2019 property because plaintiffs had the opportunity to present all affirmative defenses argued in their action for a permanent injunction during the condemnation proceedings, giving plaintiffs an adequate remedy at law.\nJudge Hudson dissenting.\nAppeal by plaintiffs from orders entered 15 January 2002 by Judge James U. Downs in Macon County Superior Court. Heard in the Court of Appeals 13 February 2003.\nAdams Hendon Carson Crow & Saenger, P.A., by Martin Reidinger and Cynthia Roelle, for plaintiffs-appellants.\nCoward Hicks & Siler, P.A., by William H. Coward for defendant-appellee." }, "file_name": "0393-01", "first_page_order": 423, "last_page_order": 430 }