{ "id": 2674319, "name": "SCHLOSS OUTDOOR ADVERTISING COMPANY, Plaintiff v. THE CITY OF CHARLOTTE, A Municipal Corporation, Defendant and Third Party Plaintiff v. GODLEY REALTY COMPANY, Third Party Defendant", "name_abbreviation": "Schloss Outdoor Advertising Co. v. City of Charlotte", "decision_date": "1980-12-16", "docket_number": "No. 8026SC439", "first_page": "150", "last_page": "155", "citations": [ { "type": "official", "cite": "50 N.C. App. 150" } ], "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": "137 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567816 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0390-01" ] }, { "cite": "113 S.E. 2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619482 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0141-01" ] }, { "cite": "131 S.E. 2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "260 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573021 ], "year": 1963, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0069-01" ] }, { "cite": "254 S.E. 2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "232 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559140, 8559174, 8559111, 8559152, 8559126 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0711-03", "/nc/291/0711-05", "/nc/291/0711-01", "/nc/291/0711-04", "/nc/291/0711-02" ] }, { "cite": "229 S.E. 2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548234 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0157-01" ] }, { "cite": "204 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556380 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0435-01" ] }, { "cite": "176 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "227 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621472 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/227/0094-01" ] } ], "analysis": { "cardinality": 551, "char_count": 10813, "ocr_confidence": 0.934, "pagerank": { "raw": 3.2949902283131544e-07, "percentile": 0.8715461789471124 }, "sha256": "1f43a6525815ed6e24fcb4348de5736a2598bd7c88845671ed49e1c663a841c5", "simhash": "1:0315fd971dcdda3f", "word_count": 1755 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Whichard concur." ], "parties": [ "SCHLOSS OUTDOOR ADVERTISING COMPANY, Plaintiff v. THE CITY OF CHARLOTTE, A Municipal Corporation, Defendant and Third Party Plaintiff v. GODLEY REALTY COMPANY, Third Party Defendant" ], "opinions": [ { "text": "CLARK, Judge.\nA complaint should not be dismissed under G.S. 1A-1, Rule 12(b)(6), for failure to state a claim unless plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Sutton v. Duke, 227 N.C. 94, 176 S.E. 2d 161 (1970); Brown v. Brown, 21 N.C. App. 435, 204 S.E. 2d 534 (1974). The only times, then, when dismissal is proper are: (1) when the complaint on its face reveals that no law supports plaintiff\u2019s claim; (2) when the complaint reveals on its face that some fact essential to plaintiff\u2019s claim is missing; and (3) when some fact disclosed in the complaint defeats the plaintiff\u2019s claim. Mozingo v. Bank, 31 N.C. App. 157, 229 S.E. 2d 57 (1976), disc. rev. denied, 291 N.C. 711, 232 S.E. 2d 204 (1977). We find none of those three circumstances in this case and hold that the trial judge erred in dismissing plaintiff\u2019s complaint for failure to state a claim. In examining plaintiff\u2019s complaint, we have treated all of plaintiff\u2019s allegations as admitted. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979).\nThe City\u2019s filing of its preliminary condemnation resolution of 28 February 1977 was subject to the requirements of G.S. 160A-246. That statute requires notice of condemnation proceedings to all \u201cpersons known to have an interest in the property\u201d by way of listing their names and addresses in the resolution. G.S. 160A-246(a)(5). G.S. 160A-246(a)(5) further provides that a \u201cperson\u2019s interest in property shall be deemed known if it appears of record, or could or would be discovered by the exercise of reasonable diligence and expense.\u201d Plaintiff\u2019s allegation in the complaint that \u201cDefendant City failed to exercise reasonable diligence to discover plaintiff\u2019s interest\u201d and that plaintiff\u2019s sign was \u201cprominently constructed upon the property\u201d creates an issue of fact as to whether defendant City exercised the reasonable diligence required by the statute. If not, the apparent failure of plaintiff to record the interest should not deprive plaintiff of the notice to which it was statutorily entitled. Plaintiff would not be prejudiced by the lack of the required notice, however, unless its interest was affected by the City\u2019s condemnation. The real issue then is whether plaintiff has stated a sufficient claim for a taking without just compensation.\nPlaintiff alleges that it has an interest in the land with which the City interfered and that the City through its contractor, cut down and removed plaintiff\u2019s sign. We believe these allegations are sufficient to state a good cause of action for inverse condemnation. The allegations in the complaint suggest:\n(1) that plaintiff had an interest in the land;\n(2) that pursuant to that interest plaintiff erected an outdoor advertising sign on the land;\n(3) that defendant City condemned an easement over that same land which included the sign;\n(4) that defendant Godley, acting under the authority of defendant City cut down and removed the outdoor advertising sign which had encroached upon the City\u2019s easement.\nOur Supreme Court has stated, \u201cIt is fundamental law that when private property is taken for a public use or purpose, just compensation must be paid.\u201d Insurance Co. v. Blythe Brothers, Co., 260 N.C. 69, 78, 131 S.E. 2d 900, 907 (1963). Plaintiff\u2019s complaint alleges that the sign was removed \u201cin furtherance of the City\u2019s purposes\u201d in that the sign \u201cwas located on or interfered with the possession, control and use of Defendant\u2019s ... easements.\u201d We hold that this allegation is sufficient to support the \u201cpublic use or purpose\u201d language quoted above.\nThe complaint alleges that plaintiff\u2019s \u201cinterest in the property\u201d included \u201can outdoor advertising sign prominently constructed upon the property.\u201d This allegation satisfies the requirement that the taking be of \u201cprivate property.\u201d\nThere remains only the issue of whether the acts of the City, through the acts of its agent Godley Realty Co., constituted a \u201ctaking\u201d under the definition of our Supreme Court as quoted above. The allegation that the City \u201ccut down and removed\u201d the sign indicates to us acts of dominion by the City (through its agents) inconsistent with the ownership of plaintiff. Plaintiff certainly should have been allowed to prove such, rather than being dismissed even before the summary judgment stage. To what extent the sign was \u201ccut down and removed\u201d and destroyed, if any, is a matter of proof by the plaintiff, but the allegation is sufficient to state a claim, when considered with other allegations in the complaint, for the taking of property without just compensation.\nPlaintiff\u2019s allegation that it \u201chas now rebuilt the sign which was torn down by the City\u201d causes us some concern. It is not clear from such a statement whether plaintiff means that it had to construct a totally new sign to replace the one allegedly taken by the City, or that it regained the original sign and re-erected it at its original site. We note, however, that mere vagueness is not ground for a motion to dismiss and that defendant was entitled to attack the allegation by a motion for a more definite statement under G.S. 1A-1, Rule 12(e). No such attack was made. For purposes of the Rule 12(b)(6) motion, the court must resolve the ambiguity in the above pleading in plaintiff\u2019s favor.\nPlaintiff\u2019s claim for damages also gives us pause. It is not clear from the language of paragraph 13 of plaintiff\u2019s complaint how it computes the $18,200.00 it seeks, but in the sentence preceding the one setting out the amount of damages, the loss of \u2018 \u2018certain advertising revenues\u201d is mentioned. We believe that lost profits are not properly compensable in an action for just compensation, Williams v. Highway Commission, 252 N.C. 141, 113 S.E. 2d 263 (1960); rather, plaintiff is limited to the diminution in the fair market value of its interest directly attributable to whatever taking it is able to prove.\nLight Company v. Creasman, 262 N.C. 390, 137 S.E. 2d 497 (1964).\nOf course, by holding as we do, we intimate no opinion as to the merits of plaintiff\u2019s claim. We simply hold that the allegations in plaintiff\u2019s complaint do give rise to certain conceivable sets of facts which, if proven, would support a claim for just compensation. We merely give plaintiff the opportunity to prove the facts necessary for its recovery.\nReversed and Remanded.\nJudges Hedrick and Whichard concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gas-ton H. Gage for plaintiff appellant.", "Office of the City Attorney by Deputy City Attorney H. Michael Boyd for defendant appellee, City of Charlotte.", "Horack, Talley, Pharr & Lowndes by Robert C. Stephens and Thomas f. Ashcraft for third party defendant appellee." ], "corrections": "", "head_matter": "SCHLOSS OUTDOOR ADVERTISING COMPANY, Plaintiff v. THE CITY OF CHARLOTTE, A Municipal Corporation, Defendant and Third Party Plaintiff v. GODLEY REALTY COMPANY, Third Party Defendant\nNo. 8026SC439\n(Filed 16 December 1980)\nEminent Domain \u00a7 13\u2014 advertising sign cut down by city \u2014 action for inverse condemnation \u2014 sufficiency of complaint to state claim\nThe trial court erred in dismissing plaintiff\u2019s inverse condemnation suit for failure to state a claim upon which relief could be granted where plaintiff alleged that pursuant to a lease with a landowner, it constructed a large outdoor advertising sign on the property in question; the city then condemned the land for a sewage easement; the city failed to exercise reasonable diligence to discover plaintiff\u2019s interest in the land; the city\u2019s contractor entered the land and cut down plaintiff\u2019s sign which encroached on the city\u2019s easement; plaintiff rebuilt the sign; and plaintiff suffered monetary damages as a result of the city\u2019s actions.\nAppeal by plaintiff from Burroughs, Judge. Order dismissing plaintiff\u2019s inverse condemnation suit for failure to state a claim upon which relief can be granted entered 15 February 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 4 November 1980.\nThe order of dismissal from which appeal has been taken was addressed solely to the sufficiency of plaintiff\u2019s complaint to state a claim upon which the court could grant relief. Accordingly, the only \u201cfacts\u201d herein set out will be those alleged in the complaint, since it is the sufficiency of those allegations that we must decide.\nPlaintiff entered into an agreement with the owners of a lot in Mecklenburg County whereby plaintiff would pay $200 per annum for \u201cthe exclusive advertising privileges and rights of erecting and maintaining . . . advertising displays\u201d upon said lot. The agreement, designated \u201cGround Lease #61,\u201d was executed and signed by the lot owner and an agent for plaintiff on 27 February 1976, the term being from year to year, automatically renewable up to seven years. The plaintiff does not allege the recordation of the agreement.\nOn 28 February 1977 the City of Charlotte adopted a resolution to condemn and on 31 March 1977, by the filing of a Complaint and Declaration of Taking and Notice of Deposit, condemned a perpetual sewerage easement through a portion of the lot along with a temporary construction easement. The lot\u2019s owners subsequently signed a consent judgment awarding them $1,750.00 as just compensation for the taking. Plaintiff was never made a party to this condemnation action.\nIn July of 1977 employees of the Godley Realty Company, third party defendants herein and the contractor employed by the City to install the sewer, entered the lot to begin construction. They cut down and removed an outdoor advertising sign erected and maintained on the lot by plaintiff pursuant to its agreement with the owners, which sign apparently interfered with the City\u2019s easements.\nPlaintiff brought this action for inverse condemnation alleging that defendant City took plaintiff\u2019s sign, entitling plaintiff to just compensation under the N.C. Const, art. I, \u00a7 19 (1970) and further seeking attorney\u2019s fees under G.S. 160A-243.1. The complaint alleges further that:\n\u201c(12) Plaintiff has now rebuilt the sign which was torn down by the CITY; however, Plaintiff alleges upon information and belief that its rebuilt sign is still subject to the Defendant CITY\u2019S easements taken by means of the exercise of eminent domain in the inverse condemnation of Defendant CITY.\n(13) As a direct and proximate result of Defendant\u2019s removal and inverse condemnation of Plaintiff\u2019s sign, Plaintiff lost certain advertising revenues.\nPlaintiff alleges upon information and belief that Plaintiff has been damaged in the amount of $18,200.00 as a direct result of Defendant\u2019s inverse condemnation.\u201d\nDefendant City moved under G.S. 1A-1, Rule 12(b)(6) to dismiss plaintiff\u2019s complaint for failure to state a claim upon which relief may be granted. On 15 February 1979 an Order was entered dismissing plaintiff\u2019s claim.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gas-ton H. Gage for plaintiff appellant.\nOffice of the City Attorney by Deputy City Attorney H. Michael Boyd for defendant appellee, City of Charlotte.\nHorack, Talley, Pharr & Lowndes by Robert C. Stephens and Thomas f. Ashcraft for third party defendant appellee." }, "file_name": "0150-01", "first_page_order": 176, "last_page_order": 181 }