{ "id": 12169273, "name": "DAVID R. COX, Plaintiff v. TOWN OF ORIENTAL AND BOARD OF COMMISSIONERS OF THE TOWN OF ORIENTAL, Defendants", "name_abbreviation": "Cox v. Town of Oriental", "decision_date": "2014-07-01", "docket_number": "No. COA13-1222", "first_page": "675", "last_page": "680", "citations": [ { "type": "official", "cite": "234 N.C. App. 675" } ], "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": "251 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "851", "parenthetical": "\"For the purpose of the motion [to dismiss under Rule 12(b)(6)], the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567570 ], "year": 1979, "pin_cites": [ { "page": "427", "parenthetical": "\"For the purpose of the motion [to dismiss under Rule 12(b)(6)], the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0416-01" ] }, { "cite": "38 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "313", "parenthetical": "stating, before section 160A-299 was enacted, that \"[t]he action of a city or town in authorizing the closing of a street[] cannot be successfully challenged in a civil suit instituted by a private citizen whose only interest therein is that of a general taxpayer of the city or town\"" } ], "opinion_index": 0 }, { "cite": "226 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621404 ], "year": 1946, "pin_cites": [ { "page": "477-78" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0477-01" ] }, { "cite": "690 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "681 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170677 ], "year": 2009, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0069-01" ] }, { "cite": "508 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "843", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 846", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11206608 ], "year": 1998, "pin_cites": [ { "page": "849", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0846-01" ] }, { "cite": "590 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "865", "parenthetical": "\"Standing is jurisdictional in nature and consequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of the case are judicially resolved.\"" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917259 ], "year": 2004, "pin_cites": [ { "page": "357", "parenthetical": "\"Standing is jurisdictional in nature and consequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of the case are judicially resolved.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0355-01" ] }, { "cite": "2013 WL 5947337", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "753 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 672, "char_count": 13623, "ocr_confidence": 0.689, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3156527658562333 }, "sha256": "efaf0bddab0a246eccab8d363a72e79a80fa7da53387e6baf4597f0bbf76c598", "simhash": "1:03df5cbbea4d69d5", "word_count": 2262 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and ERVIN concur." ], "parties": [ "DAVID R. COX, Plaintiff v. TOWN OF ORIENTAL AND BOARD OF COMMISSIONERS OF THE TOWN OF ORIENTAL, Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural History and Factual Background\nThis case arises from the decision of the Town of Oriental and its Board of Commissioners (collectively, \u201cDefendants\u201d) to permanently close Avenue A and a portion of South Avenue, public rights of way in the Town. On 2 August 2012, Plaintiff David R. Cox filed an appeal from the Town ordinance vacating Avenue A and an action for declaratory judgment in Pamlico County Superior Court. In his appeal and action, Plaintiff alleged the following relevant facts:\nThe Town sits on the Neuse River. On 13 January 2012, the Board met to consider \u201cthe possibilities of sale or exchange of property in the vicinity of the [W]est end terminus of South Avenue and Avenue A.\u201d South Avenue and Avenue A are situated on a peninsula that borders the Neuse River on the South and a tributary called Raccoon Creek on the West. Raccoon Creek is the location of the Town\u2019s harbor.\nChris Fulcher wrote to the Town Manager on 23 January 2012 and proposed to exchange a portion of his property on the Raccoon Creek side of the peninsula (\u201cthe Raccoon Creek property\u201d) for the Town\u2019s interest in Avenue A and the South Avenue terminus. Fulcher owns all property on either side of Avenue A and the South Avenue terminus. The Board voted to accept the proposal on 10 February 2012 and executed a contract on 23 May 2012. The contract indicated that the transfer would not occur if the Board determined that it was not in the Town\u2019s best interests. On 3 July 2012, the Board voted to close Avenue A. The Board declined to vacate the South Avenue terminus at that time.\nPlaintiff is a \u201ctaxpaying resident[] of the Town\u201d and owns property approximately three blocks North of Avenue A and the South Avenue terminus. Plaintiff\u2019s property does not touch Avenue A, South Avenue, or the Raccoon Creek property. On 2 August 2012, Plaintiff appealed the Board\u2019s decision to close Avenue A and sought a declaratory judgment regarding the Town\u2019s authority to close either Avenue A or the South Avenue terminus. Plaintiff filed an amendment to that action on 4 September 2012, seeking to add the Board as a party to the action and seeking \u201cinjunctive and/or declaratory relief\u2019 for a number of alleged open meetings and public records violations. Defendants responded with an answer and affirmative defenses on 2 October 2012. Four months later, on 11 February 2013, Defendants filed motions to dismiss Plaintiffs \u201cappeal, action for declaratoiyjudgment, and amendment,\u201d or, in the alternative, for judgment on the pleadings.\nA hearing on the motions was held on 4 March 2013. During the hearing, Defendants argued that Plaintiff lacked standing to bring his suit. Afterward, on 10 April 2013, the trial court entered orders dismissing Plaintiff\u2019s appeal of the Board\u2019s decision to close Avenue A and granting Defendants\u2019 motions to dismiss the declaratory action and for judgment on the pleadings. Plaintiff appeals to this Court from those orders.\nDiscussion\nOn appeal, Plaintiff argues that he (1) stated grounds to support a declaratory judgment in his action, (2) had a statutory right to appeal the Town\u2019s decision to vacate Avenue A, and (3) had a right to have his open meetings and public records claims heard. In response, Defendants argue that the trial court properly dismissed Plaintiff\u2019s action because Plaintiff lacked standing to file suit and failed to state a claim upon which relief could be granted. We affirm the trial court\u2019s orders.\nI. Plaintiff s Reply Brief\nAs a preliminary matter, we address the propriety of Plaintiff\u2019s reply brief, filed 20 March 2014. On 3 April 2014, Defendants moved this Court for leave to file a surreply brief or, in the alternative, for oral argument, contending that Plaintiff\u2019s reply brief was improper. A proposed surre-ply brief was attached. Plaintiff filed a response on 8 April 2014, objecting to the motion. On 16 April 2014, we granted Defendants\u2019 motion for leave to file a surreply brief, accepting the proposed surreply brief for that purpose, and denied the motion for oral argument. No additional documents have been filed with this Court.\nPlaintiff asserts that his reply brief is submitted pursuant to Rule 28(h) and \u201climited to a concise rebuttal of the arguments . . . contained in [Defendants\u2019 b]rief.\u201d In his reply brief, Plaintiff seeks to rebut Defendants\u2019 contentions that he (1) lacked standing to file suit and (2) failed to state a claim upon which relief could be granted. Given the contents of Plaintiff\u2019s principal brief, this discussion violates Rule 28(h) of the North Carolina Rules of Appellate Procedure.\nRule 28(h) states, in pertinent part, that:\n. . . Any reply brief which an appellant elects to file shall be limited to a concise rebuttal of arguments set out in the appellee\u2019s brief and shall not reiterate arguments set forth in the appellant\u2019s principal brief. ...\nN.C.R. App. P. 28(h) (emphasis added). In his principal brief, Plaintiff argues that he stated a claim for which relief could be granted under Rule 12(b)(6). He also argues that he had standing to appeal the Town\u2019s decision as a \u201cperson aggrieved\u201d under N.C. Gen. Stat. \u00a7 160A-299 and as a successor in interest to \u201cthese public rights of way.\u201d Plaintiff\u2019s standing argument is less detailed than his 12(b)(6) argument, but clearly supported by authority and reason nonetheless.\nAs we have previously noted, \u201c[a] reply brief does not serve as a way to correct deficiencies in the principal brief.\u201d State v. Greene, _ N.C. App. _, 753 S.E.2d 397 (2013) (unpublished opinion), available at 2013 WL 5947337 (striking the defendant\u2019s reply brief under amended Rule 28(h) because he \u201cmerely expand[ed] upon the alleged error raised in his principal brief\u2019). Plaintiff addressed Rule 12(b)(6) and the standing issue in his principal brief. In addition, standing was raised numerous times by Defendants\u2019 counsel dining the 4 March 2013 hearing on Defendants\u2019 motions to dismiss. If Plaintiff wished to address these issues in greater detail, he should have done so in his principal brief. Accordingly, we decline to consider Plaintiff\u2019s reply brief and, thus, have no reason to consider Defendants\u2019 surreply brief.\nII. Standing\nDefendants contend that the trial court properly dismissed Plaintiff\u2019s appeal and action for declaratory judgment because Plaintiff lacked standing to bring those actions. Because standing is jurisdictional, we address Defendants\u2019 argument as a threshold matter. See, e.g., In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004) (\u201cStanding is jurisdictional in nature and consequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of the case are judicially resolved.\u201d) (citations, internal quotation marks, and brackets omitted). After a thorough review of the record, we conclude that the trial court properly dismissed Plaintiff\u2019s actions for lack of standing.\nSection 160A-299 provides in pertinent part that:\n(b) Any person aggrieved by the closing of any street or alley... may appeal the ... order to the General Court of Justice within 30 days after its adoption....\nN.C. Gen. Stat. \u00a7 160A-299(b) (2013). The term \u201cperson aggrieved\u201d as it applies to section 160A-299 is not defined in the statute or by our courts. See id. Nonetheless, this Court has defined an \u201caggrieved party\u201d under section 160A and in the context of a zoning ordinance as \u201cone who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property.\u201d In re Granting of Variance by Town of Franklin, 131 N.C. App. 846, 849, 508 S.E.2d 841, 843 (1998) (citation omitted) (noting that the petitioner, an adjoining property owner, \u201cclearly established\u201d that she was an aggrieved party when the town granted a variance from the setback requirements to a group called \u201cCarriage Park Villas\u201d). We believe the same definition is applicable here. See generally In re Hayes, 199 N.C. App. 69, 78-79, 681 S.E.2d 395, 401 (2009) (\u201cThe primary rule of [statutory] construction is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. To effectuate that intent, statutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each.\u201d) (citations, internal quotation marks, elipses, and brackets omitted), disc, review denied, 363 N.C. 803, 690 S.E.2d 694 (2010).\nIn his appeal from the Town\u2019s decision and action for a declaratory judgment, Plaintiff alleged that he \u201cis a member of the public[] and a taxpaying resident]] of the Town \u201d He also stated that he owns property in \u201cBlock No. 13,\u201d which is approximately three blocks away from Avenue A, and asserted that he \u201cis aggrieved\u201d by the Town\u2019s decision. Lastly, Plaintiff alleged that he is a \u201csuccessor in interest to the dominant tract owner and offeror of dedication to public uses for use as rights of way all such land as is depicted as rights-of-way on the 1900 Town Map, including any subsequent modifications of such rights of ways].]\u201d On appeal to this Court, Plaintiff argues that he is an aggrieved person due to his status as a \u201ccitizen and resident of the Town\u201d and \u201cbecause he is a successor in interest to these public rights of way, which were designed and dedicated to provide access to the citizens of [the Town] to the public trust waters of the Neuse River, when the Town . . . was laid out [in the year 1900].\u201d We are unpersuaded.\nPlaintiff has provided no factual basis to support the argument that he is an aggrieved person in this case. His property is not adjacent to Avenue A or South Avenue and was not adjacent to those roads when the Town was designed in 1900. He has not alleged any personal injury and provides no reason to believe that his tum-of-the-last-century predecessor in interest had some special connection to Avenue A or South Avenue distinct from the rest of the community. Rather, he couches his arguments in terms of broad, public rights flowing from the Town\u2019s inception that have no bearing on our analysis here. Indeed, Plaintiff\u2019s entire argument is rooted in his status as a member of the Town\u2019s taxpaying populace. Such status is patently insufficient to support an appeal from, or action for declaratory judgment regarding, a town\u2019s order closing a street or alley under section 160A-299. See, e.g., Shaw v. Liggett & Myers Tobacco Co., 226 N.C. 477, 477-78, 38 S.E.2d 313, 313 (1946) (stating, before section 160A-299 was enacted, that \u201c[t]he action of a city or town in authorizing the closing of a street[] cannot be successfully challenged in a civil suit instituted by a private citizen whose only interest therein is that of a general taxpayer of the city or town\u201d). Accordingly, we hold that Plaintiff lacked standing to contest the Town\u2019s decision and affirm the trial court\u2019s orders dismissing his appeal, action, and amended action.\nAFFIRMED.\nJudges GEER and ERVIN concur.\n. According to Plaintiffs 2 August 2012 appeal and action, the ordinance operated to vacate only Avenue A, not the relevant portion of South Avenue. Plaintiff alleges that he was required to file this action before the Town completed the closing process, however, because of certain procedural restrictions. Thus, this appeal is effective only as it relates to the Town\u2019s closure of Avenue A, not the relevant portion of South Avenue.\n. The Town closed the South Avenue terminus on 8 July 2013. As a result, Plaintiff filed a second lawsuit against the Town and the Board, appealing the closure of the South Avenue terminus. That suit has not been appealed to this Court. Rather, the trial court stayed the proceedings on that action until this appeal could be resolved.\n. Greene is an unpublished opinion and, therefore, lacks precedential value. N.C.R. App. P. 30(e)(1). Nonetheless, its discussion is well-reasoned and one of the only opinions to address Rule 28(h) as amended (effective 15 April 2013). We find it persuasive.\n. Plaintiff asserts that these allegations \u201cmust be accepted by this [C]ourt as being true\u201d under the standard of review applied on appeal from the grant of a motion to dismiss under Rule 12(b)(6). This is incorrect. As Defendants note in their brief, that standard is only applicable to allegations of fact, not law. Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, 851 (1979) (\u201cFor the purpose of the motion [to dismiss under Rule 12(b)(6)], the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.\u201d).", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for Plaintiff.", "Davis Hartman Wright, PLLC, by Michael Scott Davis and I. Clark Wright, Jr., for Defendants." ], "corrections": "", "head_matter": "DAVID R. COX, Plaintiff v. TOWN OF ORIENTAL AND BOARD OF COMMISSIONERS OF THE TOWN OF ORIENTAL, Defendants\nNo. COA13-1222\nFiled 1 July 2014\n1. Appeal and Error\u2014reply brief\u2014surreply brief\nThe Court of Appeals declined to consider plaintiffs reply brief, and thus, had no reason to consider defendants\u2019 surreply brief.\n2. Jurisdiction\u2014standing\u2014not an aggrieved person\nThe trial court did not err by dismissing plaintiffs appeal and action for declaratory judgment based on lack of standing. Plaintiff provided no factual basis to support the argument that he was an aggrieved person.\nAppeal by Plaintiff from Orders entered 10 April 2013 by Judge Benjamin G. Alford in Pamlico County Superior Court. Heard in the Court of Appeals 23 April 2014.\nMcCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for Plaintiff.\nDavis Hartman Wright, PLLC, by Michael Scott Davis and I. Clark Wright, Jr., for Defendants." }, "file_name": "0675-01", "first_page_order": 685, "last_page_order": 690 }