{ "id": 8916003, "name": "OAKWOOD ACCEPTANCE CORPORATION, LLC, Plaintiff v. DALTON RAY MASSENGILL; PHYLLIS TART MASSENGILL; DAVID WOMACK, Tax Collector for Johnston County, North Carolina; JOHNSTON COUNTY, NORTH CAROLINA, RAINBOW INVESTMENTS, L.L.C.; NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Defendants", "name_abbreviation": "Oakwood Acceptance Corp. v. Massengill", "decision_date": "2004-01-20", "docket_number": "No. COA02-706; No. COA02-1430", "first_page": "199", "last_page": "215", "citations": [ { "type": "official", "cite": "162 N.C. App. 199" } ], "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": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "357 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491428, 491847, 491722, 491755, 491435, 491796, 491543, 491513 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0165-01", "/nc/357/0165-07", "/nc/357/0165-03", "/nc/357/0165-04", "/nc/357/0165-05", "/nc/357/0165-02", "/nc/357/0165-08", "/nc/357/0165-06" ] }, { "cite": "230 F.3d 319", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1094409 ], "year": 2000, "pin_cites": [ { "page": "324", "parenthetical": "in order to survive a motion to dismiss, \u00a7 1983 plaintiff must allege that the municipality had an express policy or custom or usage or that the constitutional injury was caused by a person with final policy-making authority" } ], "opinion_index": 0, "case_paths": [ "/f3d/230/0319-01" ] }, { "cite": "15 F.3d 333", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1527495 ], "year": 1994, "pin_cites": [ { "page": "338", "parenthetical": "reversing dismissal of complaint that alleged the existence of several municipal policies or customs" } ], "opinion_index": 0, "case_paths": [ "/f3d/15/0333-01" ] }, { "cite": "113 S. Ct. 493", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "cite": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "436 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531975 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0158-01" ] }, { "cite": "424 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524345 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0357-01" ] }, { "cite": "507 U.S. 163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6224800 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "166" }, { "page": "523" }, { "page": "1162" } ], "opinion_index": 0, "case_paths": [ "/us/507/0163-01" ] }, { "cite": "436 U.S. 658", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490618 ], "weight": 9, "year": 1978, "pin_cites": [ { "page": "691" }, { "page": "636" }, { "page": "2036", "parenthetical": "emphasis original" }, { "page": "694" }, { "page": "638" }, { "page": "2037-38" } ], "opinion_index": 0, "case_paths": [ "/us/436/0658-01" ] }, { "cite": "580 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "573 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250460 ], "year": 2002, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0415-01" ] }, { "cite": "357 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491483 ], "year": 2003, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0442-01" ] }, { "cite": "448 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549352, 2550922, 2550897, 2550744, 2552156 ], "year": 1994, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0691-03", "/nc/337/0691-05", "/nc/337/0691-04", "/nc/337/0691-02", "/nc/337/0691-01" ] }, { "cite": "443 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "131", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527946 ], "year": 1994, "pin_cites": [ { "page": "697", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0693-01" ] }, { "cite": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "481 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "345 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53966 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "367" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0356-01" ] }, { "cite": "495 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1998, "pin_cites": [ { "page": "724-25" }, { "page": "723-24" }, { "page": "724" }, { "page": "724" }, { "parenthetical": "\"Thus, in order for defendant... to have an opportunity to prepare a proper defense, the pleading should have clearly stated the capacity in which he was being sued.\"" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "347 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551074 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "554" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0548-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "887" }, { "page": "887", "parenthetical": "quoting Anita R. Brown-Graham & Jeffrey S. Koeze, Immunity from Personal Liability under State Law for Public Officials and Employees: An Update, Loc. Gov't L. Bull. 67, at 7 (Inst, of Gov't, Univ. of N.C. at Chapel Hill), Apr. 1995" }, { "page": "884" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "110" }, { "page": "110" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "577 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491506 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0046-01" ] }, { "cite": "567 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "790" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249808 ], "year": 2002, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0240-01" ] }, { "cite": "540 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "419" }, { "page": "420" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440839 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "277" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0273-01" ] }, { "cite": "518 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "32", "parenthetical": "rejecting party's cross-assignment of error regarding dismissal of claim because it did not serve as an alternative basis for supporting trial court's order granting summary judgment" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145474 ], "year": 1999, "pin_cites": [ { "page": "473", "parenthetical": "rejecting party's cross-assignment of error regarding dismissal of claim because it did not serve as an alternative basis for supporting trial court's order granting summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0468-01" ] }, { "cite": "554 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "24-25", "parenthetical": "when plaintiff cross-assigned error as to trial court's failure to award damages, \"[p]laintiff's failure to appeal the trial court's order waives this Court's consideration of the matter on appeal\"" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377764 ], "year": 2001, "pin_cites": [ { "page": "51-52", "parenthetical": "when plaintiff cross-assigned error as to trial court's failure to award damages, \"[p]laintiff's failure to appeal the trial court's order waives this Court's consideration of the matter on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0039-01" ] }, { "cite": "56 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "571", "parenthetical": "defendant was not an aggrieved party as to dismissal of complaint with respect to co-defendant" } ], "opinion_index": 0 }, { "cite": "231 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628996 ], "year": 1949, "pin_cites": [ { "page": "196", "parenthetical": "defendant was not an aggrieved party as to dismissal of complaint with respect to co-defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0190-01" ] }, { "cite": "398 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "324", "parenthetical": "where the appellant's rights have not been directly affected by the court's order, appellant is not a party aggrieved and has no standing to challenge the order on appeal and the appeal should be dismissed" } ], "opinion_index": 0 }, { "cite": "327 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496339 ], "year": 1990, "pin_cites": [ { "page": "626", "parenthetical": "where the appellant's rights have not been directly affected by the court's order, appellant is not a party aggrieved and has no standing to challenge the order on appeal and the appeal should be dismissed" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0624-01" ] }, { "cite": "132 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "260 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573500 ], "year": 1963, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0173-01" ] }, { "cite": "155 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "262", "parenthetical": "quoting Coburn v. Timber Corp., 260 N.C. 173, 175, 132 S.E.2d 340, 341 (1963)" }, { "page": "262", "parenthetical": "when neither defendant had asserted a cross-claim, one defendant could not appeal ruling as to second defendant because \"each was an adverse party to the plaintiff, only\"" } ], "opinion_index": 0 }, { "cite": "270 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570461 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "725", "parenthetical": "quoting Coburn v. Timber Corp., 260 N.C. 173, 175, 132 S.E.2d 340, 341 (1963)" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0721-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-271", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "500 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "717" }, { "parenthetical": "refusing, in connection with summary judgment order, to allow defendant to argue affirmative defense not asserted in answer" } ], "opinion_index": 0 }, { "cite": "348 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659870 ], "year": 1998, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0562-01" ] }, { "cite": "568 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "908", "parenthetical": "quoting Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248939 ], "year": 2002, "pin_cites": [ { "page": "162", "parenthetical": "quoting Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0156-01" ] }, { "cite": "62 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "523" }, { "page": "524" } ], "opinion_index": 0 }, { "cite": "233 N.C. 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597065 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0035-01" ] }, { "cite": "128 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "258 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561023 ], "year": 1963, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0426-01" ] }, { "cite": "8 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "217 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610329 ], "year": 1940, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/217/0447-01" ] }, { "cite": "5 S.E. 401", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1888, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "99 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649226 ], "year": 1888, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/99/0070-01" ] }, { "cite": "200 S.E. 13", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "15", "parenthetical": "quoting Wortham v. Basket, 99 N.C. 70, 71, 5 S.E. 401, 401 (1888)" } ], "opinion_index": 0 }, { "cite": "214 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631785 ], "year": 1938, "pin_cites": [ { "page": "547", "parenthetical": "quoting Wortham v. Basket, 99 N.C. 70, 71, 5 S.E. 401, 401 (1888)" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0544-01" ] }, { "cite": "319 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "296", "parenthetical": "when case involves only \"legal questions of . . . interpretation of statutes and regulations,\" it is ripe for summary disposition" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 214", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521304 ], "year": 1984, "pin_cites": [ { "page": "216", "parenthetical": "when case involves only \"legal questions of . . . interpretation of statutes and regulations,\" it is ripe for summary disposition" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0214-01" ] }, { "cite": "254 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "164", "parenthetical": "\"A tax foreclosure under the statute applicable to this case is analogous to an execution sale.\"" } ], "opinion_index": 0 }, { "cite": "297 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567027 ], "year": 1979, "pin_cites": [ { "page": "119", "parenthetical": "\"A tax foreclosure under the statute applicable to this case is analogous to an execution sale.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0113-01" ] }, { "cite": "235 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "stating that purpose of notice is to enable taxpayer to attend sale and make sure property is not sold for grossly inadequate price" } ], "opinion_index": 0 }, { "cite": "292 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572659 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "stating that purpose of notice is to enable taxpayer to attend sale and make sure property is not sold for grossly inadequate price" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0692-01" ] }, { "cite": "221 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "909", "parenthetical": "failure to comply with notice requirements in tax foreclosure sales \"open[s] the door to a successful attack of the tax sale\" under Weir" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 542", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550874 ], "year": 1976, "pin_cites": [ { "page": "552", "parenthetical": "failure to comply with notice requirements in tax foreclosure sales \"open[s] the door to a successful attack of the tax sale\" under Weir" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0542-01" ] }, { "cite": "314 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "516", "parenthetical": "citations omitted" }, { "page": "517", "parenthetical": "defense of bona fide purchaser for value unavailable in connection with foreclosure sale when irregularity was apparent on the face of the advertisement of the sale" } ], "opinion_index": 0 }, { "cite": "310 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2398058 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "713", "parenthetical": "citations omitted" }, { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0707-01" ] }, { "cite": "145 S.E. 281", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "pin_cites": [ { "page": "282", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626175 ], "year": 1928, "pin_cites": [ { "page": "270", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0268-01" ] }, { "cite": "94 L. Ed. 865", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1950, "pin_cites": [ { "page": "873", "parenthetical": "setting forth due process requirements" } ], "opinion_index": 0 }, { "cite": "339 U.S. 306", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362818 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "314", "parenthetical": "setting forth due process requirements" }, { "page": "657", "parenthetical": "setting forth due process requirements" } ], "opinion_index": 0, "case_paths": [ "/us/339/0306-01" ] }, { "cite": "103 S. Ct. 2706", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6125771, 6194044 ], "year": 1983, "pin_cites": [ { "page": "2711", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/br/30/2706-01", "/us/462/0791-01" ] }, { "cite": "462 U.S. 791", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194044 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "798", "parenthetical": "citations omitted" }, { "page": "187", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/462/0791-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-367", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-339.51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 105-366", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "580 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491616, 491810, 491436, 491885, 491438, 491569, 491772, 491391 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0166-06", "/nc/357/0166-05", "/nc/357/0166-02", "/nc/357/0166-01", "/nc/357/0166-04", "/nc/357/0166-08", "/nc/357/0166-07", "/nc/357/0166-03" ] }, { "cite": "575 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9252078 ], "year": 2003, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0754-01" ] }, { "cite": "546 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135678, 135926, 135611, 135676, 135870 ], "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0265-01", "/nc/353/0265-05", "/nc/353/0265-02", "/nc/353/0265-04", "/nc/353/0265-03" ] }, { "cite": "535 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "361", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497637 ], "year": 2000, "pin_cites": [ { "page": "681", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0676-01" ] }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 8, "opinion_index": 0 } ], "analysis": { "cardinality": 1476, "char_count": 38625, "ocr_confidence": 0.761, "pagerank": { "raw": 7.888901969070841e-08, "percentile": 0.4603677666149648 }, "sha256": "65ca6fb8b8c20387e8bed2fcedd3131a48cb43756de873051518bc1eb6ba47d0", "simhash": "1:0f4b95725ece6a56", "word_count": 6361 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN concur." ], "parties": [ "OAKWOOD ACCEPTANCE CORPORATION, LLC, Plaintiff v. DALTON RAY MASSENGILL; PHYLLIS TART MASSENGILL; DAVID WOMACK, Tax Collector for Johnston County, North Carolina; JOHNSTON COUNTY, NORTH CAROLINA, RAINBOW INVESTMENTS, L.L.C.; NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThis decision addresses two appeals arising from the same lawsuit challenging the tax sale of a mobile home in which plaintiff Oakwood Acceptance Corporation, LLC held a perfected security interest. Defendant Rainbow Investments, L.L.C., the purchaser of the mobile home at the tax sale, appeals from (1) the trial court\u2019s grant of partial summary judgment to Oakwood invalidating the sale and awarding Oakwood possession of the mobile home; and (2) the trial court\u2019s dismissal of Oakwood\u2019s claims against the North Carolina Department of Transportation and the Division of Motor Vehicles (collectively \u201cthe DMV\u201d). Plaintiff Oakwood appeals from the trial court\u2019s dismissal of its claims against Johnston County and David Womack. Case No. COA02-706, plaintiff Oakwood\u2019s appeal, and Case No. COA02-1430, defendant Rainbow\u2019s appeal, were previously consolidated for hearing. They are now consolidated for decision.\nWe hold that the trial court properly found no genuine issues of material fact regarding the invalidity of the sale and, therefore, affirm the grant of partial summary judgment to Oakwood. As for the dismissal of the DMV, Rainbow does not have standing to appeal since it was not an aggrieved party with respect to that portion of the trial court\u2019s order. We also hold that the trial court properly dismissed the claims against Johnston County and Womack because Oakwood failed to allege a waiver of state law governmental immunity and failed to allege a basis for municipal liability under 42 U.S.C. \u00a7 1983.\nFacts\nOn 12 November 1998, defendants Dalton Ray Massengill and Phyllis Tart Massengill purchased an Oakwood double-wide mobile home priced at $71,789.00. The Massengills financed the purchase with Oakwood for the principal sum of $76,766.22 plus interest- and other charges. Oakwood perfected its security interest in the mobile home by filing with the DMV. When the Massengills defaulted on their payments, Oakwood accelerated their debt and repossessed the mobile home in September 2000 by changing the locks and posting notices.\nLater in September, the Johnston County Tax Collector\u2019s Office levied upon and seized the Massengills\u2019 mobile home for non-payment of taxes due on the mobile home. Following the levy, the Johnston County Tax Collector\u2019s Office forwarded notice of the intended tax sale to the DMV, which in a letter dated 27 September 2000 acknowledged receipt of the notice and stated: \u201cA reasonable attempt has been made to locate and notify the current owner and all recorded .lienholders for all sales conducted under G.S. 44-A. Full disclosure of all liens is not guaranteed.\u201d\nOn 27 September 2000, the Johnston County Tax Collector\u2019s Office posted a notice of sale at the Johnston County Courthouse announcing that the sale of the Massengills\u2019 mobile home would take place on 18 October 2000 \u201cat 11:00 at Storage Location.\u201d The notice provided no further information about the location of the sale.\nAlthough Johnston County had valued and insured the mobile home at $50,000.00, Rainbow purchased it at the sale for only $5,000.00. Following payment to the County of the taxes and costs, less than $500.00 remained to satisfy the Massengills\u2019 debt to Oakwood.\nIn October 2001, Oakwood filed a complaint in Johnston County Superior Court asserting claims for (1) breach of contract against the Massengills; (2) declaratory judgment voiding the sale of the mobile home; (3) damages for negligence and under 42 U.S.C. \u00a7 1983 against \u201cTax Collector and Johnston County\u201d; (4) possession against Rainbow; (5) unjust enrichment against Rainbow; (6) injunctive relief barring transfer by Rainbow of any interest in the mobile home; and (7) declaratory judgment that the \u201cTax Collector\u201d and the DMV were required to provide actual notice to plaintiff that the mobile home had been seized for taxes owed. Defendants Johnston County and Womack filed a motion to dismiss under Rule 12(b)(6) and on 14 March 2002, Judge Knox V. Jenkins granted that motion. The order of dismissal specified that it was \u201cfinal\u201d as to the County and Womack and that \u201cthere is no just cause for delay of any appeal.\u201d On 4 April 2002, Oakwood appealed that order.\nThe remaining parties filed cross-motions for summary judgment with the DMV alternatively filing a motion to dismiss pursuant to Rules 12(b)(6), 12(c), and 12(h)(2). On 22 May 2002, Judge James R. Vosburgh granted Oakwood partial summary judgment as to defendant Rainbow, awarded plaintiff immediate possession of the mobile home, ordered the DMV to void the certificate of title issued to Rainbow and to reissue the title as it existed before the sale, dismissed all claims against the DMV, and awarded plaintiff $78,912.67 (less the net proceeds of any sale of the mobile home) as against the Massengills. The order stated: \u201cThis is a final and appealable order, and there is no just cause for delay.\u201d Rainbow appealed, contesting both the dismissal of the DMV and the partial summary judgment granted to Oakwood. Although Oakwood did not cross-appeal, it cross-assigned error as to the dismissal of the DMV.\nRainbow\u2019s Anneal\nWe address first Rainbow\u2019s appeal because it involves the primary question presented by this case: Whether the tax sale of the Massengills\u2019 mobile home was valid. As an initial matter, we note that Rainbow\u2019s appeal is interlocutory since the trial court only granted partial summary judgment to Oakwood. Because, however, the trial court appropriately certified the order under Rule 54 of the Rules of Civil Procedure, the appeal is properly before this Court. Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993).\nI. The Grant of Partial Summary Judgment, to Oakwood\nRainbow contends that genuine issues of material fact exist precluding the grant of partial summary judgment to Oakwood. Specifically, Rainbow argues that there are issues of fact regarding whether an irregularity occurred in connection with the tax sale and whether Rainbow was a good faith purchaser for value.\nOn review of a grant of summary judgment, this Court must review the whole record to determine (1) whether the pleadings, the discovery on file, and any affidavits show that there is no genuine issue as to any material fact; and (2) whether the moving party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff\u2019d per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). As stated by this Court:\nA genuine issue of material fact is of such a nature as to affect the outcome of the action. The moving party bears the burden of establishing the lack of a triable issue of fact. The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues.\nJohnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 681, 535 S.E.2d 357, 361, app. dismissed and disc. review denied, 353 N.C. 265, 546 S.E.2d 102 (2000) (citations omitted). The non-movant may not \u201crest upon the allegations of its pleading to create an issue of fact, even though the evidence must be interpreted in a light favorable to thenonmovant.\" Smiley\u2019s Plumbing Co., Inc. v. PFP One, Inc., 155 N.C. App. 754, 761, 575 S.E.2d 66, 70, disc. review denied, 357 N.C. 166, 580 S.E.2d 698 (2003).\nJohnston County and its Tax Collector acted pursuant to N.C. Gen. Stat. \u00a7\u00a7 105-366 and 105-367 (2003) in levying upon and seizing the Massengills\u2019 mobile home. N.C. Gen. Stat. \u00a7 105-366 permits a taxing authority collecting unpaid taxes to proceed first against personal property, while \u00a7 105-367(a) provides: \u201cThe levy upon the sale of tangible personal property for tax collection purposes (including levy and sale fees) shall be governed by the laws regulating levy and sale under execution except as otherwise provided in this section.\u201d\nIn execution sales, a sale of personal property may take place \u201cat any place in [the] county designated ... in the notice of sale.\u201d N.C. Gen. Stat. \u00a7 l-339.44(c) (2003). Further, under N.C. Gen. Stat. \u00a7 1-339.51 (2003), \u201c[t]he notice of sale shall ... (2) [designate the date, hour and place of sale . By virtue of N.C. Gen. Stat. \u00a7 105-367(a), these requirements apply equally to the sale of personal property for non-payment of taxes.\nOakwood first challenges the validity of the sale on the grounds that the failure to provide it with actual notice violated the due process requirements of the federal and state constitutions, citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 77 L. Ed. 2d 180, 187, 103 S. Ct. 2706, 2711 (1983) (citations omitted) (\u201cSince a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale. When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee\u2019s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane [v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657 (1950) (setting forth due process requirements)].\u201d). Alternatively, Oakwood contends that the failure of the posted notice of sale to specify the actual location of the sale invalidated the sale. Because we hold that this omission when combined with the undisputed evidence of inadequacy of price justified the trial court\u2019s decision, we do not address Oalcwood\u2019s constitutional argument.\nOur Supreme Court has held with respect to foreclosure and execution sales:\nNor is inadequacy of price alone sufficient to avoid the sale. But gross inadequacy of consideration, when coupled with any other inequitable element, even though neither, standing alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties.\nWeir v. Weir, 196 N.C. 268, 270, 145 S.E. 281, 282 (1928) (citations omitted). The Court clarified this principle in Swindell v. Overton, 310 N.C. 707, 713, 314 S.E.2d 512, 516 (1984) (citations omitted):\n[I]t is the materiality of the irregularity in such a sale, not mere inadequacy of the purchase price, which is determinative of a decision in equity to set the sale aside. Where an irregularity is first alleged, gross inadequacy of purchase price may then be considered on the question of the materiality of the irregularity. Where inadequacy of purchase price is necessary to establish the materiality of the irregularity, it must also appear that the irregularity or unusual circumstance caused the inadequacy of price.\nThese principles apply to tax sales. Henderson County v. Osteen, 28 N.C. App. 542, 552, 221 S.E.2d 903, 909 (1976) (failure to comply with notice requirements in tax foreclosure sales \u201copen[s] the door to a successful attack of the tax sale\u201d under Weir), rev\u2019d on other grounds, 292 N.C. 692, 235 S.E.2d 166 (1977). See also Henderson County v. Osteen, 297 N.C. 113, 119, 254 S.E.2d 160, 164 (1979) (\u201cA tax foreclosure under the statute applicable to this case is analogous to an execution sale.\u201d).\nRainbow argues that there was a disputed issue of fact as to the existence of any irregularity. Rainbow contends that the jury should have been allowed to decide whether the notice of sale\u2019s reference to \u201cStorage Location\u201d was a sufficient designation of the place of the sale under N.C. Gen. Stat. \u00a7 1-339.51. We hold that this issue, involving only a question of statutory construction, was a question of law for the trial court. Ace-Hi, Inc. v. Dep\u2019t of Transp., 70 N.C. App. 214, 216, 319 S.E.2d 294, 296 (1984) (when case involves only \u201clegal questions of . . . interpretation of statutes and regulations,\u201d it is ripe for summary disposition).\nThe General Assembly must have intended that a notice of sale contain greater specification of location than simply a reference to an unnamed \u201cStorage Location\u201d without any accompanying address. The purpose of requiring that sales occur \u201c \u2018at prescribed times and places [is] so that all persons may know when and where to attend to purchase such property to be sold.\u2019 \u201d Bladen County v. Breece, 214 N.C. 544, 547, 200 S.E. 13, 15 (1938) (quoting Wortham v. Basket, 99 N.C. 70, 71, 5 S.E. 401, 401 (1888)). Under an analogous statute, our Supreme Court has held \u201c[t]he sole purpose in requiring that notice of the time and place of such sale be given the mortgagee is to afford him an opportunity to protect his rights in the [personal] property.\u201d Habit v. Stephenson, 217 N.C. 447, 449, 8 S.E.2d 245, 246 (1940). With respect to personal property, specification of an address in the notice of sale is particularly important since the sale may occur at any location in the county. N.C. Gen. Stat. \u00a7 l-339.44(c). If a notice of sale does not include a location identifiable on its face, then readers of the notice will have no idea where to go to attend the sale.\nWe hold that the phrase \u201cStorage Location\u201d without more does not meet the requirement of N.C. Gen. Stat. \u00a7 1-339.51 that the notice of sale designate the \u201cplace of sale.\u201d Such a notice fails to fulfill its essential purpose of actually notifying potential purchasers where the sale is going to take place. The trial court did not, therefore, err in concluding that the notice of sale failed to comply with N.C. Gen. Stat. \u00a7 1-339.51.\nThe trial court also properly concluded that this irregularity was material under the facts of this case. As the Supreme Court has stated, our statutes regulating sales \u201ccontemplate a sale at which the thing sold will bring its fair value.\u201d Pittsburgh Plate Glass Co. v. Forbes, 258 N.C. 426, 429, 128 S.E.2d 875, 877 (1963). A public sale requires \u201cthat an opportunity be given for competitive bidding.\u201d 72 Am. Jur. 2d State and Local Taxation \u00a7 843 (2001). See also Henderson County v. Osteen, 292 N.C. 692, 235 S.E.2d 166 (1977) (stating that purpose of notice is to enable taxpayer to attend sale and make sure property is not sold for grossly inadequate price). A failure to publicize where a sale will occur will have the likely effect of decreasing the number of potential bidders, the amount of competition, and thus the price. Potential effect and not actual effect is all that is required if the ultimate sales price is grossly inadequate: \u201cActuality of injury is not a prerequisite of relief. The potentialities of the error, considered in connection with the grossly inadequate price, compel the conclusion that the irregularity in the sale was material and prejudicial \u2014 sufficient in nature to justify the interposition of a court of equity.\u201d Foust v. Gate City Sav. & Loan Ass\u2019n, 233 N.C. 35, 38, 62 S.E.2d 521, 523 (1950).\nSince the undisputed evidence establishes the existence of an irregularity with the potential for decreasing the sales price, the next question becomes the adequacy of the price. The trial court found that the evidence was undisputed that the mobile home had a fair market value of $50,000.00 and that it sold for only $5,000.00 (or 10% of its value). The court concluded that this price was \u201cgrossly inadequate.\u201d Rainbow does not dispute in its brief either the finding regarding the market value or the court\u2019s conclusion regarding the adequacy of the price.\nInstead, Rainbow argues that a question of fact exists as to whether it was a good faith purchaser for value. The claim that a party was a good faith purchaser for value is an affirmative defense. Foust, 233 N.C. at 38, 62 S.E.2d at 524. Rule 8(c) of the North Carolina Rules of Civil Procedure requires that a party specifically set forth in its answer any affirmative defenses. N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (2003). \u201c \u2018Failure to raise an affirmative defense in the pleadings generally results in a waiver thereof.\u2019 \u201d Purchase Nursery, Inc. v. Edgerton, 153 N.C. App. 156, 162, 568 S.E.2d 904, 908 (2002) (quoting Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998)). Rainbow failed to allege in its answer that it was a good faith purchaser for value. It has, therefore, waived that defense. Id. (refusing, in connection with summary judgment order, to allow defendant to argue affirmative defense not asserted in answer). See also Swindell, 310 N.C. at 715, 314 S.E.2d at 517 (defense of bona fide purchaser for value unavailable in connection with foreclosure sale when irregularity was apparent on the face of the advertisement of the sale).\nGiven the potential that the insufficient notice of sale had to depress the mobile home\u2019s sales price when combined with the gross inadequacy of the ultimate sales price, we hold that the trial court did not err in setting aside the sale.\nII. The DMV\u2019s Dismissal\nRainbow also attempts to appeal the trial court\u2019s dismissal of the DMV. Under N.C. Gen. Stat. \u00a7 1-271 (2003), \u201c[a]ny party aggrieved may appeal . . . .\u201d If, however, the order appealed \u201c \u2018does not adversely affect the substantial rights of appellant, the appeal will be dismissed.\u2019 \u201d Childers v. Seay, 270 N.C. 721, 725, 155 S.E.2d 259, 262 (1967) (quoting Coburn v. Timber Corp., 260 N.C. 173, 175, 132 S.E.2d 340, 341 (1963)). See also Culton v. Culton, 327 N.C. 624, 626, 398 S.E.2d 323, 324 (1990) (where the appellant\u2019s rights have not been directly affected by the court\u2019s order, appellant is not a party aggrieved and has no standing to challenge the order on appeal and the appeal should be dismissed).\nSince Rainbow asserted no claims against the DMV, Rainbow cannot be affected except in the most indirect fashion by the order dismissing Oakwood\u2019s claims against the DMV. See Childers, 270 N.C. at 726, 155 S.E.2d at 262 (when neither defendant had asserted a cross-claim, one defendant could not appeal ruling as to second defendant because \u201ceach was an adverse party to the plaintiff, only\u201d); Canestrino v. Powell, 231 N.C. 190, 196, 56 S.E.2d 566, 571 (1949) (defendant was not an aggrieved party as to dismissal of complaint with respect to co-defendant). Here, the only party aggrieved by the dismissal of the DMV was Oakwood, but Oakwood did not appeal from that dismissal.\nOakwood has nonetheless attempted to cross-assign as error that dismissal. Cross-assignments of error are strictly limited to issues that \u201cdeprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.\u201d N.C.R. App. P. 10(d). Since Oakwood\u2019s arguments regarding the trial court\u2019s dismissal of the DMV do not serve as an alternative basis for supporting the trial court\u2019s grant of summary judgment, they should have been the subject of a cross-appeal. Lewis v. Edwards, 147 N.C. App. 39, 51-52, 554 S.E.2d 17, 24-25 (2001) (when plaintiff cross-assigned error as to trial court\u2019s failure to award damages, \u201c[p]laintiff\u2019s failure to appeal the trial court\u2019s order waives this Court\u2019s consideration of the matter on appeal\u201d); Wilson Realty & Constr., Inc. v. Asheboro-Randolph Bd. of Realtors, Inc., 134 N.C. App. 468, 473, 518 S.E.2d 28, 32 (1999) (rejecting party\u2019s cross-assignment of error regarding dismissal of claim because it did not serve as an alternative basis for supporting trial court\u2019s order granting summary judgment). By failing to appeal from the trial court\u2019s order dismissing the DMV, Oakwood has waived review of that portion of the order. Since Rainbow, the only party to appe\u00e1l, was not aggrieved by the decision, we dismiss Rainbow\u2019s appeal from the portion of the order granting the DMV\u2019s motion to dismiss.\nOakwood\u2019s Appeal\nOakwood appealed from the trial court\u2019s order dismissing its claims against defendants Johnston County and David Womack. This appeal, also interlocutory, is before the Court based on the trial judge\u2019s Rule 54 certification.\nA trial court considering a motion to dismiss for failure to state a claim must decide, taking all the plaintiff\u2019s allegations as true, whether the plaintiff is entitled to recover under some legal theory. Block v. County of Person, 141 N.C. App. 273, 277, 540 S.E.2d 415, 419 (2000). A complaint may be dismissed pursuant to Rule 12(b)(6) when \u201c(1) the complaint on its face reveals that no law supports a plaintiff\u2019s claim, (2) the complaint on its face reveals the absence of facts sufficient to make a good claim, or (3) the complaint discloses some fact that necessarily defeats a plaintiff\u2019s claim.\u201d Governor\u2019s Club, Inc. v. Governor\u2019s Club Ltd. P\u2019ship, 152 N.C. App. 240, 253, 567 S.E.2d 781, 790 (2002), aff\u2019d per curiam, 357 N.C. 46, 577 S.E.2d 620 (2003).\nOakwood asserted claims against both Johnston County and Womack for a declaratory judgment voiding the tax sale, for damages based on negligence, and for damages under 42 U.S.C. \u00a7 1983. We hold that the dismissal of Johnston County and Womack was proper.\nI. Womack\nBefore we can address whether Womack\u2019s dismissal was proper, we must first determine whether Oakwood sued him in his individual capacity, in his official capacity, or in both capacities. Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997). In a suit against a governmental employee in his official capacity, the plaintiff is seeking relief from the governmental entity that employs the defendant, while in a suit against that employee in his individual capacity, the plaintiff is seeking relief from the defendant as an individual. Id. The distinction is critical with respect to the availability and scope of immunity and the ability even to assert a cause of action.\nAs our Supreme Court pointed out almost six years ago:\nIt is a simple matter for attorneys to clarify the capacity in which a defendant is being sued. Pleadings should indicate in the caption the capacity in which a plaintiff intends to hold a defendant liable. For example, including the words \u201cin his official capacity\u201d or \u201cin his individual capacity\u201d after a defendant\u2019s name obviously clarifies the defendant\u2019s status. In addition, the allegations as to the extent of liability claimed should provide further evidence of capacity. Finally, in the prayer for relief, plaintiffs should indicate whether they seek to recover damages from the defendant individually or as an agent of the governmental entity.\nMullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25 (1998). A problem occurs when, as here, the plaintiff does not follow the direction of the Supreme Court and fails to expressly indicate in which capacity the defendant has been sued.\nTo decipher the defendant\u2019s capacity,\n\u201c[t]he 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\nMeyer, 347 N.C. at 110, 489 S.E.2d at 887 (quoting Anita R. Brown-Graham & Jeffrey S. Koeze, Immunity from Personal Liability under State Law for Public Officials and Employees: An Update, Loc. Gov\u2019t L. Bull. 67, at 7 (Inst, of Gov\u2019t, Univ. of N.C. at Chapel Hill), Apr. 1995).\nHere, Oakwood is seeking to recover monetary damages for negligence and under 42 U.S.C. \u00a7 1983 for violation of its due process rights. The fact that damages are sought does not end the inquiry: \u201c[I]f money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the governmental entity or from the pocket of the individual.\u201d Mullis, 347 N.C. at 553, 495 S.E.2d at 723-24. To do so, a court must review the allegations in the complaint and the course of the proceedings. Id., 495 S.E.2d at 724.\nAs indicated above, the caption of the complaint does not directly specify whether Womack is sued individually or officially. It does, however, identify defendant as \u201cDavid Womack, Tax Collector for Johnston County, North Carolina,\u201d suggesting an official capacity suit. The complaint does not set forth a claim for relief against Womack separately, but rather states claims collectively against Womack and Johnston County. As the Supreme Court noted in Mullis, such an approach is \u201cindicative of plaintiff[\u2019s] intention to sue defendant ... in his official capacity ....\u201d Id.\nMost importantly, when asserting the claims for relief, Oakwood does not identify defendant Womack by his name, but rather by the title of his office, \u201cTax Collector.\u201d For example, in Oakwood\u2019s third claim for relief for damages, Oakwood alleges:\n42. Defendant Tax Collector had a duty to the Plaintiff and to the Massengills as the owners of the property to use diligence to obtain a fair and reasonable price for the mobile home before selling it.\n43. Defendant Tax Collector failed to exercise diligence to obtain a fair and reasonable price for the mobile home and sold it for ten percent or less of its fair market value.\n44. Upon information and belief, Defendant Tax Collector knew that the offer made by Rainbow for $5,000 was grossly inadequate and was grossly less than the fair market value of the mobile home.\n45. As a result, Plaintiff has been damaged by the amount of the fair market value of the mobile home at the time of its seizure by the Tax Collector. In the event the home is ultimately recovered by the Plaintiff, the Plaintiff has been damaged in the amount the home has depreciated during the time it has been detained by Defendant Rainbow. Pursuant to 42 U.S.C. 1983, Plaintiff is entitled to be restored to the position it would have been in absent Defendants\u2019 wrongful and negligent conduct.\nWhile the complaint does seek damages \u201cjointly and severally\u201d in the prayer for relief, a fact that ordinarily suggests an individual capacity suit, Block, 141 N.C. App. at 279, 540 S.E.2d at 420, Oakwood again focuses on Womack\u2019s title, seeking the relief \u201c[a]gainst Johnston County and its Tax Collector, David Womack, jointly and severally . . . .\u2019\u2019By referring to Womack by his title, Oakwood expresses an intent to sue the office and not Womack individually.\nIn Mull\u00eds, the Supreme Court also reviewed the course of the proceedings, noting that even after the defendants asserted a defense of governmental immunity, the plaintiffs did not attempt to amend their complaint to specify the capacity in which they were suing the individual defendant. 347 N.C. at 554, 495 S.E.2d at 724. The same is true here.\nBased on our review of the pleadings and the course of the proceedings, we hold that the complaint is not sufficient to state a claim for relief against defendant Womack in his individual capacity. While the reference to joint and several liability provides some support for an individual capacity suit, it is not sufficient, in light of the other allegations and the course of the proceedings, to provide adequate notice to defendant Womack that he was being sued individually as opposed to officially. Id. (\u201cThus, in order for defendant... to have an opportunity to prepare a proper defense, the pleading should have clearly stated the capacity in which he was being sued.\u201d).\nAn official capacity suit, such as the one here, is \u201cmerely another way of pleading an action against the governmental entity.\u201d Id., 495 S.E.2d at 725. See also Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (official capacity claim under 42 U.S.C. \u00a7 1983 is only another way of pleading a claim against the governmental entity of which officer is an agent and \u201c[t]hus, where the governmental entity may be held liable for damages resulting from its official policy, a suit naming public officers in their official capacity is redundant\u201d). As a result, Oakwood\u2019s claims against Womack in his official capacity as Johnston County\u2019s Tax Collector are identical to its claims against Johnston County and our analysis of the viability of the Johnston County claims applies equally to Womack.\nII. Claims Against Johnston Countv\nA. Declaratory Judgment Claim\nOakwood sought a judgment, apparently against all defendants, \u201cnullifying the sale of the mobile home by the Tax Collector and Johnston County for the reason that such sale was illegal, was not carried out in accordance with statutory requirements, and was accordingly void.\u201d Oakwood also sought a declaratory judgment that \u201cthe Defendant Tax Collector was required under the North Carolina Constitution to provide actual notice to the Plaintiff that the mobile home in which it had a secured interest and a property interest had been seized for taxes purportedly owed.\u201d\nBecause, in connection with Rainbow\u2019s appeal, we have affirmed the trial court\u2019s order declaring the sale void, this portion of Oakwood\u2019s appeal is moot and we need not address it. \u201cA case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u201d Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). Further,\n[w]henever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\nDickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994) (internal quotation marks omitted).\nNo party has argued on appeal that the trial court\u2019s grant of partial summary judgment to Oakwood is in any way ineffective in the absence of a claim against Johnston County and Womack. We therefore decline to address Oakwood\u2019s arguments regarding its entitlement to a declaratory judgment with respect to Johnston County and Womack.\nB. Negligence Claim\nOakwood\u2019s claim for damages based on negligence is barred by governmental immunity. Under North Carolina law, counties are entitled to governmental (or sovereign) immunity unless the county waives immunity or otherwise consents to be sued. Dawes v. Nash County, 357 N.C. 442, 445, 584 S:E.2d 760, 762 (2003). \u201cUnder the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity.\u201d Meyer, 347 N.C. at 104, 489 S.E.2d at 884.\nWhile a county may waive immunity through the purchase of liability insurance, N.C. Gen. Stat. \u00a7 153A-435 (2003), \u201c[i]n order to overcome a defense of governmental immunity, the complaint must specifically allege a waiver of governmental immunity.\u201d Paquette v. County of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002), disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003). \u201cAbsent such an allegation, the complaint fails to state a cause of action.\u201d Id. Since the complaint in this case does not include any allegations that the County has purchased liability insurance or oth.erwise waived its immunity, the trial court properly dismissed the negligence claim against the County.\nC. 42 U.S.C. \u00a7 1983 Claim\nThe complaint also asserts a claim for damages under 42 U.S.C. \u00a7 1983 for violation of Oakwood\u2019s due process rights. While Oakwood relied upon the North Carolina constitution as a basis for voiding the sale, Oakwood did not seek damages under the state constitution and we do not, therefore, address whether Oakwood would have been entitled to pursue such a claim.\nOakwood correctly states that a county may be sued for damages under 42 U.S.C. \u00a7 1983 for violation of the federal constitution. Oakwood\u2019s complaint, however, fails to include the allegations necessary to state a \u00a7 1983 claim against a municipality such as a county.\nThe United States Supreme Court first held that a municipality is subject to suit under \u00a7 1983 in Monell v. Dep\u2019t of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Monell and the decisions that followed \u201c[made] it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit \u2014 either absolute or qualified \u2014 -under \u00a7 1983.\u201d Leatherman v. Tarrant County, 507 U.S. 163, 166, 122 L. Ed. 2d 517, 523, 113 S. Ct. 1160, 1162 (1993).\nThus, contrary to Johnston County\u2019s contentions, it is not entitled to immunity from suit under \u00a7 1983. The County\u2019s reliance on Faulkenbury v. Teachers\u2019 & State Employees\u2019 Retirement System, 108 N.C. App. 357, 424 S.E.2d 420, aff'd per curiam, 335 N.C. 158, 436 S.E.2d 821 (1993) and Corum v. Univ. of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431, 113 S. Ct. 493 (1992) is misplaced. Those cases recognized that states \u2014 as opposed to local governing bodies \u2014 may not be sued under \u00a7 1983 and are entitled to Eleventh Amendment immunity. Indeed, this distinction was noted by our Supreme Court in Moore, 345 N.C. at 365, 481 S.E.2d at 20: \u201cIn the present case, the Court of Appeals erroneously applied the holding of Corum to dismiss plaintiffs\u2019 claims against a municipality and its officials. Although a municipal government is a creation of the State, it does not have the immunity granted to the State and its agencies.\u201d\nNevertheless, Monell also held that a municipality \u201ccannot be held liable solely because it employs a tortfeasor \u2014 or, in other words, a municipality cannot be held liable under \u00a7 1983 on a respondeat superior theory.\u201d 436 U.S. at 691, 56 L. Ed. 2d at 636, 98 S. Ct. at 2036 (emphasis original). Instead, \u201cit is when execution of a government\u2019s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under \u00a7 1983.\u201d Id. at 694, 56 L. Ed. 2d at 638, 98 S. Ct. at 2037-38.\nIn order to state a claim for relief against a local governing body, a plaintiff must allege a basis for liability under Monell: \u201cSection 1983 plaintiffs seeking to impose liability on a municipality must, therefore, adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights.\u201d Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994) (reversing dismissal of complaint that alleged the existence of several municipal policies or customs). See also McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000) (in order to survive a motion to dismiss, \u00a7 1983 plaintiff must allege that the municipality had an express policy or custom or usage or that the constitutional injury was caused by a person with final policy-making authority).\nThe complaint in this case does not allege a basis for liability under Monell. The complaint contains no allegation that Oakwood\u2019s injury was due to Johnston County policy, custom, or usage or that it resulted from a decision by a person with final policymaking authority for the County. A review of the allegations reveals only a claim based on respondeat superior. The trial court therefore properly dismissed Oakwood\u2019s claims under \u00a7 1983.\nConclusion\nWe affirm the trial court\u2019s orders granting partial summary judgment to Oakwood and dismissing the claims asserted against Johnston County and Womack. We dismiss Rainbow\u2019s appeal with respect to the DMV.\nAffirmed in part and dismissed in part.\nChief Judge EAGLES and Judge MARTIN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Frederic E. Toms & Associates, P.L.L.C., by David A. Bridgman, for plaintiff.", "Holland & O\u2019Connor, P.L.L.C., by W. A. Holland, Jr., for defendant Rainbow Investments, L.L.C.", "Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for defendants North Carolina Department of Transportation and North Carolina Division of Motor Vehicles.", "J. Mark Payne, for defendants Johnston County and David Womack." ], "corrections": "", "head_matter": "OAKWOOD ACCEPTANCE CORPORATION, LLC, Plaintiff v. DALTON RAY MASSENGILL; PHYLLIS TART MASSENGILL; DAVID WOMACK, Tax Collector for Johnston County, North Carolina; JOHNSTON COUNTY, NORTH CAROLINA, RAINBOW INVESTMENTS, L.L.C.; NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Defendants\nNo. COA02-706\nNo. COA02-1430\n(Filed 20 January 2004)\n1. Taxes\u2014 sale of mobile home \u2014 insufficient notice of sale\u2014 grossly inadequate sale price\nThe trial court did not err by setting aside the tax sale of a mobile home where the reference in the notice of sale to \u201cStorage Location\u201d without any accompanying address was not a sufficient designation of the place of sale under N.C.G.S. \u00a7 1-339.51, and the ultimate sale price was grossly inadequate.\n2. Appeal and Error\u2014 standing \u2014 aggrieved party \u2014 necessity of appeal\nAppeals from the dismissal of DMV from claims arising from the tax sale of a mobile home were themselves dismissed. Defendant Rainbow was not aggrieved by the decision, and plaintiff Oakwood did not appeal from that portion of the order. N.C.G.S. \u00a7 1-271.\n3. Public Officers and Employees\u2014 suit against tax collector \u2014 individual capacity \u2014 notice insufficient\nA complaint did not state a claim against the Johnston County Tax Collector (Womack) in his individual capacity where it did not provide sufficient notice that he was being sued individually.\n4. Appeal and Error\u2014 issue moot \u2014 relief granted elsewhere\nA portion of an appeal was moot where it sought relief granted elsewhere in the appeal.\n5. Immunity\u2014 sovereign \u2014 no allegations of insurance or waiver\nA negligence claim against a county arising from a tax sale was properly dismissed as barred by sovereign immunity where there were no allegations that the county purchased liability insurance or otherwise waived immunity.\n6. Civil Rights\u2014 tax sale \u2014 no allegation of county policy or custom\nA claim against a county under 42 U.S.C. \u00a7 1983 was properly dismissed where there was a claim only under respondeat superior and no allegation of an injury due to Johnston County\u2019s policy, custom, or usage or that it resulted from a decision by a person with final decision-making authority.\nAppeals by plaintiff from order entered 14 March 2002 by Judge Knox V. Jenkins, in Johnston County Superior Court and by defendant Rainbow Investments, L.L.C., from order entered 22 May 2002 by Judge James R. Vosburgh, in Johnston County Superior Court. Heard in the Court of Appeals 15 September 2003.\nFrederic E. Toms & Associates, P.L.L.C., by David A. Bridgman, for plaintiff.\nHolland & O\u2019Connor, P.L.L.C., by W. A. Holland, Jr., for defendant Rainbow Investments, L.L.C.\nAttorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for defendants North Carolina Department of Transportation and North Carolina Division of Motor Vehicles.\nJ. Mark Payne, for defendants Johnston County and David Womack." }, "file_name": "0199-01", "first_page_order": 227, "last_page_order": 243 }