United Daughters of the Confederacy, N.C. Div. v. City of Winston-Salem
Date Filed2022-12-16
Docket21A21
Cited0 times
StatusPublished
Syllabus
Whether the facts alleged in plaintiff's amended complaint were sufficient to establish standing to challenge the City's removal of a Confederate monument from privately owned property located in downtown Winston-Salem.
Full Opinion (html_with_citations)
IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-143
No. 21A21
Filed 16 December 2022
UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA
DIVISION, INC., and JAMES B. GORDON CHAPTER #211 of THE UNITED
DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC.
v.
CITY OF WINSTON-SALEM, by and through ALLEN JOINES, MAYOR OF
WINSTON-SALEM, NORTH CAROLINA, FORSYTH COUNTY; COUNTY OF
FORSYTH, NORTH CAROLINA, by and through DAVID R. PLAYER,
CHAIRMAN OF THE BOARD OF COMMISSIONERS; and WINSTON
COURTHOUSE, LLC
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 275 N.C. App. 402 (2020), affirming an order entered on 8 May
2019 by Judge Eric C. Morgan in Superior Court, Forsyth County, granting
defendantsâ motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure. Heard in the Supreme Court on 29 August
2022.
James A. Davis for plaintiff-appellants.
Anargiros N. Kontos, Deputy City Attorney, and Angela I. Carmon, City
Attorney, for defendant-appellee City of Winston-Salem.
B. Gordon Watkins III, County Attorney, for defendant-appellee Forsyth
County.
Allman Spry Davis Leggett & Crumpler, P.A., by Jodi D. Hildebran; and
Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidu,s for defendant-
appellee Winston Courthouse, LLC.
UNITED DAUGHTERS OF THE CONFEDERACY, N.C. DIV. V. CITY OF WINSTON-SALEM
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Mark Dorosin and Elizabeth Haddix for Chatham for All, North Carolina
Commission on Racial & Ethnic Disparities in the Criminal Justice System,
Dr. Joyce Blackwell, Dr. Phillip A. Clay, Algin Holloway, Patrice High, Edith
A. Hubbard, Walter Jackson, Bradley Johnson, Philip McAlpin, Angelia Euba
McKoy, Henry Clay McKoy, Lisa V. Moore, Moses G. Parker, Melvin L. Watt,
Melvin L. Williams, Camille Z. Roddy, and Jimmy Barnes, amici curiae.
Matthew R. Joyner and H. Edward Phillips for Sons of Confederate Veterans,
amicus curiae.
ERVIN, Justice.
¶1 In this case, plaintiff United Daughters of the Confederacy, North Carolina
Division, Inc., challenges a decision made by defendant City of Winston Salem to
remove a Confederate monument from the grounds of the former Forsyth County
Courthouse.1 Although the courthouse and surrounding real property was originally
owned by defendant Forsyth County, the County had sold the property to defendant
Winston Courthouse, LLC, a private entity that had converted the courthouse
building into private residential apartments, prior to the monumentâs removal. The
trial court granted defendantsâ motions to dismiss for lack of subject matter
jurisdiction pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1), and failure to state a claim
upon which relief could be granted pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), and
1 On 1 May 2019, following the trial courtâs hearing concerning defendantsâ dismissal
motions, plaintiff James B. Gordon Chapter # 211 of the United Daughters of the Confederacy
filed a notice of voluntary dismissal without prejudice. In light of that fact, the term
âplaintiffâ as used throughout the remainder of this opinion should be understood as referring
to the United Daughters of the Confederacy, North Carolina Division, Inc.
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the Court of Appeals affirmed the dismissal order in a non-unanimous decision. The
issue before this Court on appeal is whether the facts alleged in plaintiffâs amended
complaint were sufficient to establish that plaintiff had standing to challenge the
Cityâs action. After careful consideration of the record in light of the applicable law,
we hold that, even though plaintiff lacks standing to proceed in this case, the trial
court erred in dismissing the amended complaint with prejudice. As a result, we
affirm the decision of the Court of Appeals, in part; reverse that decision, in part; and
remand this case to Superior Court, Forsyth County, for further proceedings not
inconsistent with this opinion.
I. Factual Background
A. Substantive Facts
¶2 Plaintiff is a nonprofit corporation organized under the laws of the State of
North Carolina, having first registered with the Secretary of State in 1992. According
to the allegations contained in plaintiffâs amended complaint, in 1903 the James B.
Gordon Chapter #211 of the United Daughters of the Confederacy âbegan a movement
to place a Confederate monument in Court House Square in Winston, North
Carolina.â In its complaint, plaintiff alleges that the local chapter had approved a
proposed design for the monument, initiated plans âto obtain a monument at a cost
of no more than $3,000.00,â and launched a fundraising campaign to raise money for
the monumentâs construction.
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¶3 Plaintiff further alleges that, âon or about March 1, 1905, the Forsyth County
Board of County Commissioners issued an order granting to the Plaintiff, formerly
known as the Daughters of the Confederacy, permission to erect a memorial to the
fallen soldiers of the Confederacy . . . upon property of the County of Forsyth.â2 In
addition, the complaint alleges that, âon or about October 4, 1905, a ceremony
sanctioned by the Board of County Commissioners was conducted during which the
Confederate Monument was dedicated.â Finally, the amended complaint alleges that,
sometime around March 2012, while acting âon behalf of the County of Forsyth, North
Carolina,â Ashley Neville and John Salmon of Ashley Neville, LLC, nominated the
old Forsyth County Courthouse for placement on the National Register of Historic
Places, with that nomination having been accepted â[o]n or about April 23, 2013[.]â
Plaintiff never makes any claim to own the monument or to have any sort of
contractual or property interest in it.
¶4 On 18 March 2014, the County executed a general warranty deed conveying
the old Forsyth County Courthouse and the surrounding real property to Winston
Courthouse, a private real estate developer, by means of a deed that expressly
excluded from the sale âa plaque mounted inside the building, time capsule currently
buried inside the building, and public monuments located outside of the building on
2 The complaint does not clearly indicate whether the reference to âplaintiffâ in this
part of the amended complaint refers to the statewide organization or the local chapter.
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the landâ and provided that Winston Courthouse âagrees to execute necessary
easements (in form and content that are reasonably acceptable to both parties) to
allow [the County] continued access to maintain and/or remove these items from the
land at the expense of [the County].â Subsequently, Winston Courthouse converted
the old courthouse building into private residential apartments, with the building
having been exclusively used for residential purposes since April 2015. Plaintiff has
not alleged or shown that any of the easements contemplated by the deed were ever
executed or recorded.
¶5 On 18 August 2017, shortly after an outbreak of violence in Charlottesville,
Virginia, related to the proposed removal of a statue of Robert E. Lee, the monument
was vandalized, with the word âShameâ having been spray painted upon it. According
to Assistant City Manager Damon Dequenne, local law enforcement officers
subsequently received complaints from a resident of the Winston Courthouse
apartments who was âupset about armed guards patrolling the [monument]â after
this incident. On 20 August 2017, local law enforcement officers identified âeight (8)
concerned citizens standing guard near the [monument].â
¶6 In September 2017, Winston-Salem Mayor Allen Joines contacted Salem
Cemetery and proposed that the monument be relocated to the cemetery, a
proposition that the Salem Cemetery Board considered and approved on 24 October
2017. On 25 December 2018, the monument was vandalized a second time, with the
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words âCowards & Traitorsâ having been spray-painted on it. According to Mr.
Dequenne, this incident âraised concerns that someone might try to topple the
[monument] in a manner similar to that in Chapel Hill and other citiesâ and that âany
efforts to topple the [monument] might result in injury to persons on the sidewalk as
well as private property.â
¶7 On 31 December 2018, City Attorney Angela Carmon sent a letter to plaintiffâs
president and registered agent and to Winston Courthouseâs management regarding
the recent acts of vandalism at the monument.3 According to Ms. Carmon, the events
in question had âinvoke[d] significant concern about the safety of the [monument] and
the potential for confrontation, breaches of the peace[,] and other nuisance type
conduct similar to that endured by other cities,â with the City not being âin a position
to provide constant security checks necessary for the protection of the [monument]
and to mitigate the recuring acts of vandalism.â In addition, Ms. Carmon stated that
the monument âdoes not appearâ to be âpublicly ownedâ and that â[c]laims of
ownership of the [monument] have come from the United Daughters of the
Confederacy.â In light of existing âconcerns for overall public safety and protection of
the [monument],â Ms. Carmon âdirect[ed] [plaintiff] to remove and relocate by
January 31st the [monument] from its present location to a more secure location
where the same can be protected from vandals and others looking to create a
3 Ms. Carmonâs letter was also addressed to a representative of the local chapter.
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Charlottesville type incident in Winston-Salem,â noting that a â[f]ailure to comply
with this direction may result in the [C]ity seeking a court order for the removal and
relocation of the [monument] to preserve the same and to address public safety
concerns[.]â On 8 January 2019, counsel for Winston Courthouse sent a letter to
plaintiffâs representatives stating that âthe recent controversy, press reports, and
references to potential violence have raised serious concerns for some of [Winston
Courthouseâs] residentsâ and that, âin order to protect the residents and the
[p]roperty,â Winston Courthouse âcannot allow the [monument] to remain on the
[p]roperty.â
¶8 At the public comment portion of the 7 January 2019 Winston-Salem City
Council meeting, several City residents spoke in favor of removing or relocating the
monument. On 13 January 2019, protests occurred near the monument during which
people expressed both support for and opposition to the monumentâs continued
presence in its current location. According to Assistant City Manager Dequenne, the
Winston-Salem Police Department âplanned and executed a riot and emergency type
operation using ninety-three (93) officers who expended in excess of four-hundred and
sixty-five (465) man hours . . . in an effort to protect the [monument] and the public.â
In addition, Mr. Dequenne noted that the police departmentâs bike patrol had
continued to actively monitor the monument following the initial act of vandalism
that occurred in 2017. Additional City residents voiced strong support for the
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removal of the monument during the public comment portion of the 22 January 2019
City Council meeting, with some speakers having suggested that the monument
should be destroyed rather than relocated.
¶9 On 25 January 2019, counsel for plaintiff hand-delivered a letter to defendants
in which it requested a 60-day extension of the deadline for the removal of
monument.4 On 30 January 2019, Mr. Dequenne issued a notice declaring that the
monument was a public nuisance in accordance with N.C.G.S. § 160A-93 and Winston
Salem City Code § 62-3(b) on the grounds that âthe continued presence of the
[monument] at its current location is detrimental to the safety and longevity of the
[monument] and prejudicial to public safety.â In support of this determination, Mr.
Dequenne pointed to âall that has occurred with Confederate Statues over the past
sixteen months,â including (1) âthe toppling of the [Silent Sam] statue in August 2018
in Chapel Hillâ; (2) âthe December 2018 vandalism [of the monument] in Winston-
Salemâ; (3) âthe expressions of concern regarding citizen safety both in 2017 and
2018â; (4) âthe protest events here in Winston-Salemâ; (5) âcomments made at the
Winston-Salem City Councilâs public comment periodsâ; (6) âcalls for destruction of
the [monument]â; and (7) âthe potential for toppling the same,â all of which caused
4 Although the 25 January 2019 letter is not included in the record, other portions of
the record suggest that the letter advanced many of the same legal arguments regarding the
monument upon which plaintiff has relied before this Court.
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him to conclude that âthe potential for harm to the [monument] and citizens was
legitimate and the potential for harm looming.â
¶ 10 On the same day, City Attorney Carmon denied plaintiffâs request for
additional time to remove the monument on the grounds that âthe totality of the
circumstances suggests that [plaintiffâs] request is made in an effort to cause an
unnecessary delay in action by the City,â with plaintiff having been âmade aware of
the Cityâs public-safety related concerns regarding the [monument] more than sixteen
(16) months ago.â As a result, despite the existence of uncertainly about the
ownership of the monument, the City indicated that it would, in accordance with the
earlier public nuisance declaration, summarily remove the monument from the old
courthouse property without seeking a court order. Winston Courthouse agreed to
cooperate with the Cityâs efforts to remove the monument.
¶ 11 On 12 March 2019, the City had the monument removed from the old
courthouse property and placed in storage, where it would remain until it could be
moved to the Salem Cemetery. At that time, the City informed plaintiff that it was
âmore than willing to make the [monument] available to [plaintiff if] it wish[ed] to
retrieve the [monument] from storageâ and that it would pay for the monumentâs
relocation, at no cost to plaintiff, âupon property [where] [plaintiff] has clear written
permission to place the [monument], provided the location is not prejudicial to public
safety.â
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B. Procedural History
¶ 12 On 31 January 2019, plaintiff filed a complaint against the City and the
County in which it sought the issuance of a temporary restraining order and
preliminary injunction enjoining defendants âfrom taking affirmative action to
remove or relocate the [monument] prior to a full adjudication of the respective rights
and obligations of the Parties[.]â On 6 February 2019, plaintiff filed an amended
complaint in which it added the local chapter as a party plaintiff and Winston
Courthouse as a party defendant and sought the entry of a declaratory judgment to
determine (1) âthe Partiesâ respective rights, duties, privileges, obligations, liabilities,
[and] immunities with regard to the [monument]â and (2) â[w]hether the City of
Winston-Salem [has] misapplied [N.C.G.S. §] 160A-193 and City Ordinance 62-3(b)
in declaring [that] the [monument] constitutes [a] Public Nuisance,â as well as the
issuance of a preliminary injunction precluding the relocation of the monument
pending resolution of its request for a declaratory judgment. After a hearing held on
31 January 2019, Judge Stanley L. Allen entered an order on 25 February 2019 in
which he denied plaintiffâs request the for the entry of a temporary restraining order.5
¶ 13 On 8 March 2019, defendants filed separate motions to dismiss the amended
complaint for lack of subject matter jurisdiction pursuant to N.C.G.S. § 1A1, Rule
5Although Winston Courthouse was not named as a party defendant in the original
complaint, the order notes that its attorney appeared at the hearing and argued that the
motion should be denied.
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12(b)(1), and failure to state a claim upon which relief can be granted pursuant to
N.C.G.S. § 1A-1, Rule 12(b)(6), in which they argued, among other things, that
plaintiff lacked standing to challenge the Cityâs decision to remove the monument.
On 20 March 2019, plaintiff filed a second amended motion for the issuance of a
preliminary injunction in which it alleged that the City had acted unlawfully and in
violation of plaintiffâs due process rights by removing the monument prior to a
determination concerning the merits of defendantsâ dismissal motion and sought the
entry of an order requiring the City to return the monument to the courthouse
property. In an affidavit filed in response to plaintiffâs motion, Winston Courthouseâs
manager asserted that Winston Courthouse would be âirreparably harmedâ if the
monument were to be returned to the old courthouse property on the grounds that
the restoration of the monument would result in an unlawful entry upon Winston
Courthouseâs private property, force Winston Courthouse to incur additional security
and legal expenses, and endanger the safety of its residents.
¶ 14 After a hearing held on 29 April 2019, the trial court entered an order on 8
May 2019 granting defendantsâ dismissal motions. In support of this determination,
the trial court noted that plaintiff âhas never alleged that it owns the [monument] or
that there was ever any contract, lease, or other agreement between [plaintiff] and
another entity requiring that the [monument] stay in its location on the land of
[Winston Courthouse].â The trial court rejected plaintiffâs contention that it had
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standing to maintain the present action because âa specific requirement for
membership in [p]laintiff organizations is establishing that one is a lineal descendant
of [a Confederate soldier].â In light of the fact that plaintiff âhas not alleged that it
owns the [monument], has not alleged that it has any contractual or other legally
enforceable right in the [monument], and has not demonstrated a legally protected
interest that would be invaded by Defendantsâ actions,â the trial court concluded that
plaintiff had failed to establish standing. The trial court further concluded that
plaintiff âhas not established that there is any injury in fact that is either concrete or
particularized to this specific plaintiff.â As a result, for all of these reasons, the trial
court concluded that it lacked subject matter jurisdiction over this case and that
plaintiff had failed to state a claim upon which relief could be granted and dismissed
plaintiffâs amended complaint with prejudice. Plaintiff noted an appeal to the Court
of Appeals from the trial courtâs order.
C. Court of Appeals Decision
¶ 15 In seeking relief from the trial courtâs order before the Court of Appeals,
plaintiff argued that the trial court had erred by dismissing its complaint for lack of
standing given that it âhas an abiding and cognizable legal interest in the
[monument] because [plaintiff] is a legacy organization which raised the money
necessary to design, build, and place the monument on [the old courthouse property]â
and that it âwas clearly and specifically threatened with adverse consequences if it
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failed or refused to remove the [m]onument.â In addition, plaintiff argued that,
because the trial court had dismissed the amended complaint for lack of subject
matter jurisdiction, it had erred by dismissing the amended complaint with, rather
than without, prejudice. In plaintiffâs view, â[a] court cannot dismiss a complaint
with prejudice if it has held that it lacks jurisdiction over the proceeding,â citing Cline
v. Teich for Cline, 92 N.C. App. 257, 264 (1988) (vacating an order dismissing the
plaintiffâs complaint for failure to state a claim upon which relief could be granted
because âthe district court lacked subject matter jurisdiction over the present caseâ
and, for that reason, âhad no authority to consider whether the [c]omplaint failed to
state a claim.â).
¶ 16 A divided panel of the Court of Appeals affirmed the trial courtâs order, with
the majority agreeing with the trial court that plaintiff had failed to establish the
standing needed to assert the claims alleged in the amended complaint and
concluding that dismissal of the amended complaint with prejudice was proper.
United Daughters of the Confederacy v. City of Winston-Salem, 275 N.C. App. 402
(2020). In upholding the trial courtâs decision to dismiss plaintiffâs amended
complaint with prejudice, the Court of Appeals concluded that, âeven assuming
arguendo that it was improper to dismiss the complaint with prejudice on the basis
of Rule 12(b)(1), it was not improper to do so on the basis of Rule 12(b)(6), which
operates as an adjudication on the merits.â Id. at 406. In view of the fact that the
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trial court dismissed plaintiffâs amended complaint based upon both Rule 12(b)(1) and
Rule 12(b)(6), the Court of Appeals concluded that âthe trial court did not err in
dismissing the complaint with prejudice pursuant to Rule 12(b)(6), and that any error
in doing so pursuant to Rule 12(b)(1) was rendered harmless as a result.â Id.
¶ 17 The Court of Appeals began its discussion of the standing issue by explaining
that, in order to show standing, âa plaintiff must demonstrate three things: injury in
fact, a concrete and actual invasion of a legally protected interest; the traceability of
the injury to a defendantâs actions; and the probability that the injury can be
redressed by a favorable decision.â Id. at 407 (citing Neuse River Found., Inc. v.
Smithfield Foods, Inc., 155 N.C. App. 110, 114 (2002)). For that reason, the Court of
Appeals held that â[t]he mere filing of a declaratory judgmentâ action âis not
sufficient, on its own, to grant a plaintiff standing.â Id. (citing Beachcomber Prop.,
LLC v. Station One, Inc., 169 N.C. App. 820, 824 (2005)). Instead, the Court of
Appeals held that, in order âto pursue a declaratory judgment as to its rights in the
[monument], plaintiff had to show, at the very least, that it possessed some rights in
the [monument]âa legally protected interest invaded by defendantsâ conduct.â Id.
As a result of the fact that, âaside from acknowledging their role in funding the
erection of the [monument] over a century ago,â plaintiffs had alleged no ownership
rights or other legal interest in the monument, id. at 408, the Court of Appeals
concluded that, since plaintiff had failed to allege an âinjury in fact,â the trial court
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had not erred by dismissing plaintiffâs complaint with prejudice pursuant to Rule
12(b)(6), id.
¶ 18 In dissenting from his colleaguesâ decision to affirm the trial courtâs dismissal
order, Judge Tyson stated that he would have concluded that plaintiff had standing
to pursue the claims asserted in the amended complaint for the purposes of obtaining
relief from what he viewed as the âpre-emptive and unlawful actions of the City of
Winston Salem.â Id. at 409 (Tyson, J., dissenting). According to Judge Tyson, â[t]he
pleadings assert and the record raises factual disputes over who currently owns the
[monument],â with plaintiff not being required âto claim sole ownership to possess
standing in this declaratory judgment action.â Id. at 412. In Judge Tysonâs view,
plaintiff had standing to seek the entry of the requested declaratory judgment
because the amended complaint âclearly assert[ed] and âinvolve[d] an actual
controversy between the parties,â â id at 413 (quoting Goldston v. State, 361 N.C. 26,
30 (2006)), and because plaintiff, â[a]s an association of [c]hapters and members,â had
associational standing to pursue its claim against defendants, id. at 414 (citing River
Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130 (1990) (holding that an association
has standing to file an action on behalf of its individual members when â(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organizationâs purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in
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the lawsuitâ (quoting Hunt v. Wash. State Apple Advertising Comm., 432 U.S. 333,
343 (1977)).6 Judge Tyson believed that plaintiffâs members had standing to seek
relief from the Cityâs actions because â[i]t is undisputed that the [monument] was
paid for and erected by [plaintiffâs] members and [c]hapter,â that plaintiffâs
participation in this litigation was âdirectly related to the stated non-profit and
charitable goals of the organization,â and that the âclaim asserted and the relief
requested does not require the participation of the individual members or
[c]hapters[.]â Id.
¶ 19 In addition, Judge Tyson asserted that, â[a]s a veteranâs memorial and a war
grave for those who did not return home and [an object] listed on the National
Register [of Historic Places], the [monument] is arguably protected from injury or
destruction by the âVeterans Memorial Preservation and Recognition Act of 2003.â â
Id.at 415 (citing18 U.S.C. § 1369
(2018) (imposing criminal penalties upon anyone
who destroys or attempts to destroy a monument âcommemorating the service of any
person or persons in the armed forces of the United Statesâ that is located on federally
owned or controlled land.)). According to Judge Tyson, a âveteranâ for purposes of the
Veterans Memorial Preservation and Recognition Act includes individuals who
6 Judge Tyson also appeared to suggest that plaintiff might have standing to maintain
the present action pursuant to the decision of the Court of Appeals in Fuller v. Easley, 145
N.C. App. 391, 395 (2001) (holding that a plaintiff âmay have standing to bring a taxpayer
action, not as an individual taxpayer, but on behalf of a public agency or political subdivision,
if the proper authorities neglected or refused to actâ) (cleaned up)).
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âserved for ninety days or more in the active military or [naval] service during the
Civil War,â id.(quoting38 U.S.C. § 1501
), with the Secretary of the Army being
directed âto furnish, when requested, appropriate Government headstones or
markers at the expense of the United States for the unmarked gravesâ of various
persons, including âSoldiers of the Union and Confederate Armies of the Civil War,â
id. (quoting 24 U.S. § 279(a) (repealed 1 September 1973)).
¶ 20 Judge Tyson further contended that the monument was also protected by
N.C.G.S. § 100-2.1, which provides, subject to certain exceptions, that âa monument,
memorial, or work of art owned by the State may not be removed, relocated, or altered
in any way without the approval of the North Carolina Historical Commission,â
N.C.G.S. § 100-2.1(a) (2021)), and restricts the removal or relocation of an âobject of
remembrance located on public property,â § 100-2.1(b). According to Judge Tyson,
plaintiffs âare seeking a declaratory judgment, restraining order, and injunction to
enforce the statute, consistent with their threshold ownership of and role in securing
and erecting the [monument] and the specific goals expressed in their charter,â with
it being necessary to satisfy these restrictions âprior to any efforts [that] are
commenced to alter or remove the [monument]â if it âis determined to be owned by
the State . . . or is located on State-owned property.â Id. at 416 (emphasis in original).
¶ 21 Judge Tyson further asserted that, even though N.C.G.S. § 160A-193 âgrants
statutory authority to a municipality to act when a building or structure constitutes
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an imminent danger to public health or safety,â before taking action âthe municipality
must comply with federal and state laws and give required notice, a hearing, and
ample opportunity to make the structure safe.â Id. (citing Monroe v. City of New Bern,
158 N.C. App. 275 (2003)). Judge Tyson claimed the City âwould [have acted] ultra
vires to purport to declare a [m]emorial and war grave dedicated to dead and wounded
veterans of that county, whether owned by Forsyth County or [plaintiffs] or the State
to be a public nuisanceâ; that the City had âno lawful basis to declare the [monument]
to be a public nuisance or to pre-emptively demand then unilaterally remove it from
a property listed on the National Register of Historic Places without prior permission
or agreementâ; and that the City could have only removed the monument âafter
compliance with the applicable federal and state statutes.â Id.at 416â17 (citing18 U.S.C. § 1369
;36 C.F.R. § 60.15
; N.C.G.S. § 100-2.1). As a result, Judge Tyson
concluded that plaintiffâs request for a declaratory judgment âinvokes subject matter
jurisdiction and states standing and claims for relief to survive [d]efendantsâ motions
to dismiss.â Id. at 417.
¶ 22 Finally, Judge Tyson contended that the City had âinexplicitly [sic] and
unlawfully sought to declare the [monument] to dead and wounded veterans from
Forsyth County to be a public nuisance, used taxpayer funds to dismantle and remove
the [monument], and sought to relocate the [monument] to the Salem Cemetery
without the agreement of the owners and in violation of federal and state law.â Id.
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at 418. After noting that â[t]emporary removal is permitted by agreement with the
owner when required to preserve the [monument], which must be re-erected within
ninety (90) days thereafter,â id. (citing N.C.G.S. § 100-.21(b)), Judge Tyson asserted
that this statutory provision had no application to the present case because
defendants had made âno allegations of action to physically damage the [monument]â
or âassert[ed] any agreement with [plaintiff], the State, or any other potential owner
to dismantle, remove, or relocate the [monument],â id. In Judge Tysonâs view, the
majorityâs decision â[did] not address, explain, distinguish[,] nor refute any of the
rules, precedents, laws, and statutes that are plead at the trial court, cited on appeal,
and as controlling law, are clearly applicable to the facts and record,â and that the
trial courtâs decision to dismiss plaintiffâs amended complaint with prejudice had been
erroneous. Id. at 419. Plaintiff noted an appeal to this Court from the Court of
Appealsâ decision based upon Judge Tysonâs dissent.
II. Analysis
A. Standard of Review
¶ 23 This Court reviews a trial courtâs decision to grant or deny a motion to dismiss
for lack of standing using a de novo standard of view, under which it âview[s] the
allegations as true and the supporting record in the light most favorable to the non-
moving party,â Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644 (2008), with
this being the applicable standard of review regardless of whether the complaint is
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dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or for
failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6),
see Harris v. Matthews, 361 N.C. 265, 271 (2007) (dismissal under Rule 12(b)(1)); New
Hanover Cnty. Bd. of Ed. v. Stein, 380 N.C. 94, 2022-NCSC-9, ¶ 21 (dismissal under
Rule 12(b)(6)). An appellate court considering a challenge to a trial courtâs decision
to grant or deny a motion to dismiss for lack of subject matter jurisdiction may
consider information outside the scope of the pleadings in addition to the allegations
set out in the complaint. See Harris, 361 N.C. at 271. A complaint is properly
dismissed pursuant to Rule 12(b)(6) â(1) when the complaint on its face reveals that
no law supports [the] plaintiffâs claim; (2) when the complaint reveals on its face the
absence of fact[s] sufficient to make a [ ] claim; [or] (3) when some fact disclosed in
the complaint necessarily defeats [the] plaintiffâs claim.â Intersal, Inc. v. Hamilton,
373 N.C. 89, 98 (2019) (quoting Oates v. Jagg, Inc.,314 N.C. 276, 278
(1985)).
¶ 24 This Court reviews decisions of the Court of Appeals for errors of law. N.C. R.
App. P. 16(a); see also State v. Melton, 371 N.C. 750, 756 (2018). In the event that the
sole basis for a partyâs appeal of right is a dissent in the Court of Appeals, the Courtâs
review is âlimited to consideration of those issues that are (1) specifically set out in
the dissenting opinion as the basis for that dissent, (2) stated in the notice of appeal,
and (3) properly presented in the new briefs[.]â N.C. R. App. P 16(b); see also C.C.
Walker Grading & Hauling, Inc. v. S.R.F. Mgmt. Corp., 311 N.C. 170, 175 (1984)).
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B. Standing
¶ 25 A plaintiff must establish standing in order to assert a claim for relief.
Willowmere Cmty. Assân, Inc. v. City of Charlotte, 370 N.C. 553, 561 (2018); Creek
Pointe Homeownerâs Assân v. Happ, 146 N.C. App. 159, 164 (2001). âAs a general
matter, the North Carolina Constitution confers standing on those who suffer harm.â
Mangum, 362 N.C. at 642 (citing N.C. Const. art. I, § 18 (providing that â[a]ll courts
shall be openâ and âevery person for an injury done him in his lands, goods, person,
or reputation shall have remedy by due course of law[.]â)). As we have previously
explained,
â[t]he âgist of the question of standingâ is whether the party
seeking relief has âalleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions.â â
Stanley v. Depât of Conservation and Dev., 284 N.C. 15, 28 (1973) (quoting Flast v.
Cohen 392 U.S. 83, 99(1968) (quoting Baker v. Carr,369 U.S. 186, 204
(1962))). Prior
to our decision in Committee to Elect Dan Forest v. Employee Political Action
Committee, 376 N.C. 558, 2021-NCSC-6, the Court of Appeals had consistently held
that North Carolinaâs standing requirements were identical to those enforced in the
federal courts, so that a plaintiff was required to show that he or she had suffered
â(1) [an] âinjury in factââan invasion of a legally protected
interest that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2)
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[that] the injury is fairly traceable to the challenged action
of the defendant; and (3) [that] it is likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.â
Neuse River Found., 155 N.C. App. at 114, (quoting Lujan v. Defs. of Wildlife,504 U.S. 555
, 560â61 (1992)). In Committee to Elect Dan Forest, however, we held that,
since the North Carolina Constitution does not contain the same âcase-or-
controversyâ provision that appears in the United States Constitution, it does not
require the existence of an âinjury-in-factâ to establish standing. Comm. to Elect Dan
Forest, ¶ 85. Instead, we held that, â[w]hen a person alleges the infringement of a
legal right directly under a cause of action at common law, a statute, or the North
Carolina Constitution . . . the legal injury itself gives rise to standing.â Id.7
¶ 26 Admittedly, neither the trial court nor the Court of Appeals had the benefit of
our decision in Committee to Elect Dan Forest at the time that they addressed the
standing issue that is before us in this case. In light of that decision, to the extent
that the lower courts relied upon plaintiffâs failure to allege an âinjury-in-factâ in
determining that plaintiff lacked standing, any such determination constituted error.
7 We did note that, âin directly attacking the validity of a statute under the
constitution, a party must show they have suffered a âdirect injury.â â Comm. to Elect Dan
Forest, ¶ 82 (quoting State ex rel. Summerell v. Carolina-Virginia Racing Assân, 239 N.C. 591,
594 (1954)) (emphasis added). Although amicus Chatham for All, et al., argues that N.C.G.S.
§ 100-2.1 is unconstitutional as applied to Confederate monuments generally, no party in this
case has attacked the validity of N.C.G.S. § 100-2.1 or any other statute. As a result, we need
not address whether plaintiff has sustained the sort of âdirect injuryâ needed to support a
challenge to the validity of a statutory provision enacted by the General Assembly.
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On the other hand, this analytical flaw in the reasoning adopted by the trial court
and the Court of Appeals does not change the fact that plaintiff has failed to establish
standing in this case, so that the decisions of the trial court and the Court of Appeals
with respect to the standing issue should be affirmed. See Eways v. Governorâs Island,
326 N.C. 552, 554 (1990) (holding that, â[w]here a trial court has reached the correct
result, the judgment will not be disturbed on appeal where a different reason is
assigned to the decisionâ).
¶ 27 In its brief, plaintiff advances a number of arguments, some of which it has
asserted for the first time before this Court, in support of its contention that it has
standing to pursue the claims asserted in the amended complaint. Although plaintiff
has, in some instances, conflated its standing-related arguments with its arguments
regarding the legally and conceptually distinct issue of whether the Cityâs actions
were authorized under the various state and federal laws cited by plaintiff, we will
attempt to address each of its standing-related arguments in turn for the purpose of
determining whether plaintiff has made the necessary showing of standing.
¶ 28 As an initial matter, plaintiff argues that, âto challenge a statute, municipal
ordinance, policy, or action, a plaintiff need only demonstrate that it has been
âinjuriously affectedâ by the enactment or policy or action,â quoting Goldston, 361 N.C.
at 35. In apparent reliance upon the law of taxpayer standing, seeid.
at 31â32,
plaintiff contends that â[c]itizens and taxpayers have the right to seek equitable and
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declaratory relief when governing authorities are preparing to put property dedicated
to the public to an unauthorized use,â citing Wishart v. Lumberton, 254, N.C. 94, 96
(1961). For that reason, plaintiff asserts that â[a] citizen, [acting] in his own behalf
and that of all other taxpayers[,] may maintain a suit seeking to enjoin the governing
body of a municipal corporation from transcending their lawful powers or violating
their legal duties in any mode which will injuriously affect the taxpayers,â citing
Merrimon v. S. Paving & Const. Co., 142 N.C. 539, 545 (1906). In plaintiffâs view,
although a declaratory judgment action must involve an
actual controversy between the parties, plaintiffs are not
required to allege or prove that a traditional cause of action
exists against defendants in order to establish an actual
controversy. A declaratory judgment should issue (1) when
it will serve a useful purpose in clarifying and settling the
legal relations at issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity and
controversy giving rise to the proceeding.
quoting Goldson, 361 N.C. at 33 (2006) (cleaned up). In view of the fact that the
amended complaint âpatently assert[s] and âinvolve[s] an actual controversy between
the parties,â â specifically a dispute over who owns the monument, plaintiff argues
that it âdoes not have to claim sole ownership of the [monument] to possess standing
in this declaratory judgment action.â
¶ 29 Secondly, plaintiff claims to be entitled to claim associational standing because
â(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organizationâs purpose; and (c) neither
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the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit,â quoting River Birch Assocs., 326 N.C. at 130. According to
plaintiff, âindividual members of [its] organization who live in Forsyth County would
have standing to sue in their own right as taxpayers,â citing Charles Stores v. Tucker,
263 N.C. 710, 717 (1965); Fuller, 145 N.C. App. at 395â96), with the fact that it is a
nonprofit corporation in good standing in North Carolina and the fact that its
âpurposes include âhistorical, benevolent, memorial, educational and patriotic
programsâ â sufficing to âclearly and equivocally give[ ] it an articulated interest in
the status and preservation of objects of remembrance such as the [m]onument.â As
a result, plaintiff contends that the âfundamental premisesâ upon which it was
founded âestablish that its very existence is germane to the issues raised in this
litigationâ and that âa thorough presentation and inquiry into the relevant evidence
and the applicable law does not require the active participation of [its] individual
members[.]â
¶ 30 Thirdly, plaintiff contends that âthe [amended] complaint alleges colorable
claims that [its] members and its affiliated chapter were responsible for funding and
erecting the [monument],â that âno governmental expenditures were involved in the
enterprise,â and that â[the County] is the owner of the monument.â After conceding
that any of its members who might have been involved in erecting the monument are
no longer alive, plaintiff contends that, âas an incorporated entity which has affiliated
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chapters made up of qualifying members, [it] has a perpetual existence for so long as
it otherwise complies with the laws of the State of North Carolina,â so that it
ânecessarily followsâ that it âhas succeeded to the interests of those deceased
members of an affiliated chapter who were responsible for designing, funding, and
erecting the [monument] in the first place.â Plaintiff argues that âthe [amended]
complaint specifically alleges that the monument had its origins in the efforts of
[p]laintiff and its subsidiary local chapter to design, fund, and erect the [monument],â
that this allegation âis facially sufficient to state a particularized interest in the
[monument],â and that the trial court erred by concluding that it lacked standing to
maintain the present declaratory judgment action.
¶ 31 Finally, plaintiff claims that it âdid not start this fightâ and that it had, instead,
been âclearly and specifically threatened with adverse consequences by the City of
Winston-Salem if it failed or refused to remove the [monument].â According to
plaintiff, â[t]o deny that [it] does not have the right to defend itself in a court of law
when it was the recipient of a clear and unequivocal attack would be to subvert
accepted and well-established concepts of due process and equal protection under
law.â Plaintiff asserts that, while it âdoes not have to claim sole ownership to possess
standing in this declaratory judgment action,â the City has ârepeatedly asserted that
[p]laintiff owned the [monument] in its demands and in other communications sent
to [p]laintiff, while the other [d]efendants assert that ownership of the [monument]
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is unknown.â As a result, plaintiff contends that â[t]his action squarely raises the
question of the ownership of the [monument],â and that âit is only logical to find that
standing exists if an individual or entity is alleged to own an item of property as has
been the case with allegations made concerning [p]laintiff and its alleged ownership
of the [monument].â
¶ 32 Plaintiffâs arguments rest upon a fundamental misunderstanding of the law of
standing. In essence, plaintiff appears to believe that by simply filing a declaratory
action and asserting that there was an âactual controversy between the partiesâ
relating to the identity of the monumentâs owner, it has made a sufficient showing to
establish standing. See Goldston, 361 N.C. at 33. However, as the majority of the
Court of Appeals observed, â[t]he mere filing of a declaratory judgment is not
sufficient, on its own, to grant a plaintiff standing,â United Daughters of the
Confederacy, 275 N.C. App. at 407 (citing Beachcomber Prop., 169 N.C. App. at 824),
with it being necessary for a party to establish standing as a prerequisite for the
assertion of a declaratory judgment claim, Goldston, 361 N.C. at 33 (holding that
plaintiffs had established taxpayer standing before âconsider[ing] the form of relief
sought by plaintiffs, who [had] filed a declaratory judgment actionâ) (emphasis
added); see also Taylor v. City of Raleigh, 290 N.C. 608, 620 (1976) (holding that the
validity of a zoning ordinance could be challenged through a declaratory judgment
action only after determining that the plaintiff had established standing). In other
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words, plaintiff is still required to demonstrate that it has sustained a legal or factual
injury arising from defendantsâ actions as a prerequisite for maintaining the present
declaratory judgment action. See Goldston, 361 N.C. at 35 (noting that â[o]nly those
persons may call into question the validity of a statute who have been injuriously
affected thereby in their persons, property, or constitutional rights.â) (quoting
Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 166 (1962) (emphasis added
in Goldston)); Comm. to Elect Dan Forest, ¶ 85 (holding that â[t]he North Carolina
Constitution confers standing to sue in our courts on those who suffer the
infringement of a legal rightâ) (emphasis added).
¶ 33 A careful analysis of the amended complaint satisfies us that plaintiff has
failed to identify any legal right conferred by the common law, state or federal statute,
or the state or federal constitutions of which they have been deprived by defendantsâ
conduct. For example, plaintiff has not claimed any proprietary or contractual
interest in the monument that would support its contention that the removal of the
monument constituted an âunlawful seizureâ in violation of the Fourth Amendment
or an âunlawful[ depriv[ation] of property without due process of lawâ in violation of
the Fifth Amendment. Without asserting ownership over a piece of property, plaintiff
cannot claim that the property was the subject of an unlawful seizure or deprivation.
See Maines v. City of Greensboro, 300 N.C. 126, 134 (1980) (noting that â[a]t the
threshold of any procedural due process claim is the question of whether the
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complainant has a liberty or property interest, determinable with reference to state
law, that is protectible under the due process guarantyâ (citing Bishop v. Wood, 426
U.S. 341(1976); Presnell v. Pell,298 N.C. 715
(1979)). A number of plaintiffâs other
allegations, including its assertion that the Cityâs actions âinfringe[d] upon the
freedom of speech of the [plaintiff] and the citizens of the County,â that these actions
âviolate[d] the right of equal protection pursuant to the [Fourteenth] Amendment,â
and that â[p]laintiff will be irreparably harmed if [d]efendants take affirmative action
to remove or relocate the [monument] prior to a full adjudication of the respective
rights and obligations of the [p]arties,â are nothing more than conclusory statements
devoid of any factual or legal support. See Krawiec v. Manly, 370 N.C. 602, 610 (2018)
(holding that âa complaint that makes general allegations in sweeping and conclusory
statements, without specifically identifying the trade secrets allegedly
misappropriated, is insufficient to state a claim for misappropriation of trade secretsâ
(cleaned up)).
¶ 34 Although the amended complaint claims that the local chapter was involved in
raising funds to erect the monument and that it received permission from the County
to place the monument outside the old county courthouse building in 1905, plaintiff
does not allege that the local chapter or any of its members retained an ownership
interest in the monument or had executed a contract with the County providing that
the monument would remain upon the old courthouse property in perpetuity. As a
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result, even construing plaintiffâs allegations concerning the funding for and erection
of the monument as true, the mere fact that the local chapter âfunded and erected the
[monument]â does not suffice to establish standing in the absence of an affirmative
claim to have some sort of proprietary or contractual interest in the monument. This
is particularly true given that the plaintiffâs allegations that the Cityâs actions
violated various state and federal laws, which we address in further detail below,
assume that the County, rather than plaintiff, owns the monument.
¶ 35 In addition, our taxpayer standing jurisprudence makes it clear that, âwhere a
plaintiff undertakes to bring a taxpayerâs suit on behalf of a public agency or political
subdivision, his complaint must disclose that he is a taxpayer of the agency [or]
subdivision,â Branch v. Bd. of Ed. of Robeson Cnty., 233 N.C. 623, 626 (1951) (citing
Hughes v. Teaster, 203 N.C. 651 (1932)); see also Fuller, 145 N.C. App. at 395â96, and
âallege facts sufficient to establishâ either that âthere has been a demand on and a
refusal by the proper authorities to institute proceedings for the protection of the
interests of the public agency or political subdivisionâ or that âa demand on such
authorities would be useless.â Id. Although plaintiff has included such assertions in
its brief before this Court, no such allegations appear in the amended complaint. See
Davis v. Rigsby, 261 N.C. 684, 686 (1964) (noting that â[a] party is bound by his
pleadings and, unless withdrawn, amended, or otherwise altered, the allegations
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contained in all pleadings ordinarily are conclusive against the pleaderâ).8 Instead,
the amended complaint alleges that plaintiff is a nonprofit (and, therefore, non-
taxpaying) corporation, see DiCesare v. Charlotte-Mecklenburg Hosp. Auth., 376 N.C.
63, 70 (2020) (holding, in the context of a motion for judgment on the pleadings, that
the movant must show that the complaint âfails to allege facts sufficient to state a
cause of action or admits facts which constitute a complete legal bar theretoâ
(emphasis added) (citation omitted)), and it does not allege that any of its members
pay taxes to either the City or the County. In addition, plaintiff has never alleged
that it has brought this action âon behalf ofâ the City or the County, Branch, 233 N.C.
at 626, or accused public officials of âmisuse or misappropriation of public funds,â
Goldston, 361 N.C. at 33. As a result, plaintiffâs amended complaint simply does not
make a valid claim of taxpayer standing in the manner required by this Courtâs
precedent.
¶ 36 In the same vein, we hold that the amended complaint fails to allege sufficient
facts necessary to establish associational standing. Although plaintiff argues that it
is a âlegacy organization whose purposes include âhistorical, benevolent, memorial,
8 In addition, given that plaintiff did not advance this argument before the Court of
Appeals, it is not permitted do so for the first time before this Court. See Westminster Homes,
Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309 (2001) (noting the
longstanding rule that âissues and theories of a case not raised below will not be considered
on appeal;â see also N.C. R. App. P. 10(a) (providing that issues not raised in a partyâs brief
are deemed abandoned).
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educational and patriotic programs;â â that its charter âclearly and [un]equivocally
gives it an articulated interest in the status and preservation of objects of
remembrance such as the [m]onument;â that it âhas succeeded to the interests of
those deceased members of an affiliated chapter who were responsible for designing,
funding, and erecting the [monument];â and that it has âa specific requirement for
membership . . . that one is a lineal descendant of an individual who served in the
government or the armed forces of the Confederacy,â none of these factual allegations
are raised in the amended complaint. In addition, the amended complaint does not
identify any of plaintiffâs individual members or describe how the legal rights of any
of plaintiffâs individual members have been violated. As a result, the amended
complaint fails to allege facts sufficient to show that âthe interests [plaintiff] seeks to
protect are germane to the organizationâs purposeâ or that its members âwould
otherwise have standing to sue in their own right.â River Birch Assocs., 326 N.C. at
130.
¶ 37 In addition, we are simply not persuaded that the purpose for which plaintiff
was organized, standing alone, suffices to provide it with standing to maintain the
present action. Aside from the fact that plaintiff has cited no authority to support its
position, similar arguments have consistently been rejected by both the federal courts
and our Court of Appeals. See, e.g., Gardner v. Mutz, 360 F. Supp. 3d 1269, 1276
(M.D. Fla. 2019) (concluding that, even though the plaintiffs claimed âgenealogical
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relationships and membership in associations for particular historical and cultural
foci,â they âcannot base their standing on their preferences for the preservation of
Confederate memorialsâ because such preferences âare not sufficiently particularized,
but are general, public-interest grievances, and vindicating the public interest is the
function of the legislative and executive branches, not the judicial branchâ (cleaned
up)), vacated, in part, on other grounds, 962 F.3d 1329(11th Cir. 2020); McMahon v. Fenves,323 F. Supp. 3d 874, 880
(W.D. Tex. 2018) (observing that the plaintiffs âmay be more deeply attached to the values embodied by the Confederate monuments than the average student rushing to class or the mall, but their identities as descendants of Confederate veterans do not transform an abstract ideological interest in preserving the Confederate legacy into a particularized injuryâ); Socây for Hist. Pres. of Twentysixth N.C. Troops, Inc. v. City of Asheville,282 N.C. App. 701
, 2022-NCCOA- 218, ¶¶ 26â27 (concluding that that neither a purported violation of N.C.G.S. § 100- 2.1 nor the plaintiffâs status as âa legacy organization which was responsible forâ the restoration of a monument that was subsequently removed by the City of Asheville sufficed to âestablish a legal injury suffered by [the] plaintiff sufficient to establish standingâ);9 Hist. Pres. Action Comm. v. Reidsville, No. COA12-1386,2013 WL 6096749
, at *5 (N.C. Ct. App. Nov. 19, 2013) (unpublished) (concluding that the
9 The decision in Twentysixth North Carolina Troops is particularly noteworthy
because the Court of Appealsâ analysis, unlike the earlier decision in this case, rested upon
this Courtâs decision in Committee to Elect Dan Forest.
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plaintiffsâ claim that they âderived a particular aesthetic enjoyment from the
[Confederate] monument and are injured by its removalâ was insufficient to support
a claim of standing).
¶ 38 Finally, plaintiffâs assertion that it has standing because it â[has] the right to
defend itself in a court of law when it was the recipient of a clear and unequivocal
attackâ finds no support in the law or the facts of this case. Neither the allegations
contained in the amended complaint nor the evidence contained in the record support
plaintiffâs contention that it was âclearly and specifically threatened with adverse
consequences by the City of Winston-Salem if it failed or refused to remove the
[monument].â Instead, the amended complaint simply alleges that the City had
âcaused a letter to be sent to [plaintiff] stating that it had until January 31st, 2019 to
remove [the monument].â The letter itself, a copy of which appears in the record on
appeal and the authenticity of which has not been questioned by any party,
acknowledges that â[c]laims of ownership of the [monument] have come from the
United Daughters of the Confederacy,â directs plaintiff âto remove and relocateâ the
monument by 31 January 2019, and warns that â[f]ailure to comply with this directive
may result in the [C]ity seeking a court order for the removal and relocation of the
[monument] to preserve the same and to address public safety concerns[.]â Although
the letter does suggest that the City intended to utilize some sort of judicial process
to facilitate the monumentâs removal in the event that plaintiff failed to remove it
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voluntarily, neither the letter nor the amended complaint contains any threat that
the City intended to institute legal action directly against plaintiff.
¶ 39 In addition, even if one takes the allegations contained in the amended
complaint as true, the mere fact that the City sent plaintiff a letter in which it set a
deadline for the removal of the monument does not automatically confer standing
upon plaintiff, particularly given the absence of any allegation that plaintiff has any
proprietary or contractual interest in the monument. As the trial court correctly
observed, plaintiff, as the party that initiated the lawsuit, has âthe burden of proving
that standing exists.â ChĂĄvez v. Wadlington, 261 N.C. App. 541, 544 (2018) (quoting
Myers v. Baldwin, 205 N.C. App. 696, 698 (2010)).10 Thus, for all these reasons, we
hold that the amended complaint even âwhen liberally construed,â Wells Fargo Ins.
Servs. USA, Inc. v. Link, 372 N.C. 260, 266 (2019), fails to allege âthe infringement of
a legal right directly under a cause of action at common law, a statute, or the North
Carolina Constitutionâ sufficient to give plaintiff standing to challenge the Cityâs
actions in removing the monument from the old courthouse property, Comm. to Elect
Dan Forest, ¶ 85.
10 In the event that the City had brought suit against plaintiff for the purpose of
forcing it to remove the monument, plaintiff would, of course been entitled to defend itself,
with the City, rather than plaintiff, having been required to show that it had standing to seek
the requested relief from plaintiff.
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C. State Law Claims
¶ 40 In addition, plaintiff argues that the City violated numerous provisions of state
law by relocating the monument, with each of these claims appearing to rest upon
the premise that the County owns the monument. A careful analysis of each of these
claims in light of the allegations set out in the amended complaint satisfies us that
plaintiff lacks standing to bring a claim under these statutes, that many of plaintiffâs
contentions are not properly before the Court, and that, in any event, plaintiffâs
arguments under these statutes lack sufficient legal support.
1. N.C.G.S. § 100-2.1 (Protection of Monuments)
¶ 41 As an initial matter, plaintiff argues that the City âdenied plaintiff due process
of law and violated [N.C.G.S.] § 100-2.1â by removing the monument from the old
courthouse property. N.C.G.S. § 100-2.1 (âProtection of monuments, memorials, and
works of artâ) provides as follows:
(a) Approval Required.--Except as otherwise provided in
subsection (b) of this section, a monument, memorial, or
work of art owned by the State may not be removed,
relocated, or altered in any way without the approval of the
North Carolina Historical Commission.
(b) Limitations on Removal.--An object of remembrance
located on public property may not be permanently
removed and may only be relocated, whether temporarily
or permanently, under the circumstances listed in this
subsection and subject to the limitations in this subsection.
An object of remembrance that is temporarily relocated
shall be returned to its original location within 90 days of
completion of the project that required its temporary
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removal. An object of remembrance that is permanently
relocated shall be relocated to a site of similar prominence,
honor, visibility, availability, and access that are within
the boundaries of the jurisdiction from which it was
relocated. An object of remembrance may not be relocated
to a museum, cemetery, or mausoleum unless it was
originally placed at such a location. As used in this section,
the term âobject of remembranceâ means a monument,
memorial, plaque, statue, marker, or display of a
permanent character that commemorates an event, a
person, or military service that is part of North Carolinaâs
history. The circumstances under which an object of
remembrance may be relocated are either of the following:
(1) When appropriate measures are required by the
State or a political subdivision of the State to
preserve the object.
(2) When necessary for construction, renovation, or
reconfiguration of buildings, open spaces, parking,
or transportation projects.
(c) Exceptions.--This section does not apply to the
following:
(1) Highway markers set up by the Board of
Transportation in cooperation with the Department
of Environmental Quality and the Department of
Natural and Cultural Resources as provided by
Chapter 197 of the Public Laws of 1935.
(2) An object of remembrance owned by a private
party that is located on public property and that is
the subject of a legal agreement between the private
party and the State or a political subdivision of the
State governing the removal or relocation of the
object.
(3) An object of remembrance for which a building
inspector or similar official has determined poses a
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threat to public safety because of an unsafe or
dangerous condition.
N.C.G.S. § 100-2.1. According to plaintiff, N.C.G.S. § 100-2.1 âapplies to the
controversy between the [p]arties on the basis that the [monument] is patently an
object of remembrance located on public property,â with plaintiff having made
âfacially sufficient allegations tending to establish a colorable right of ownership of
the [monument] in Forsyth County.â In addition, plaintiff appears to argue that
N.C.G.S. § 100-2.1 gives plaintiff standing to challenge the monumentâs removal.
¶ 42 As support for its argument that the County owns the monument, plaintiff
directs our attention to language appearing in the contract of sale and the deed
transferring ownership of the old courthouse property from the County to Winston
Courthouse âtend[ing] to establish that [the] County owns the [monument] and that
it specifically and intentionally reserved easements for the purpose of maintaining
the [monument.]â Secondly, plaintiff notes that the amended complaint âalleges that
members of its local chapter raised the funds necessary to design, build, and install
the [monument] from private sources,â that the local chapter âdedicated the
[monument] to Forsyth County and its citizens,â and that âthe historical record
establishes that the Forsyth County Commissioners expressly permitted the
[monument] to be placed on land which the County owned[.]â According to plaintiff,
â[s]uch allegations are patently sufficient to invoke the provisions of [N.C.G.S.] § 100-
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2.1 as a basis for adjudicating the rights and responsibilities of the respective parties
to this dispute.â
¶ 43 According to plaintiff, â[d]edication is a form of transfer, either formal or
informal, in which one grants rights to the public in their property,â citing Spaugh v.
Charlotte, 239 N.C. 149 (1954). Plaintiff asserts that the amended complaint âalleges
sufficient facts from which one could reasonably conclude that it was intended for the
[monument] to be dedicated to public use and that the governing body of Forsyth
County accepted such dedication on behalf of the citizens of the county.â Arguing in
reliance upon the deed transferring the old courthouse property to Winston
Courthouse, plaintiff argues that â[i]t is patently nonsensical for [the] County to
reserve easement rights with regard to the [monument] . . . for purposes of
maintenance and repair if it did not in fact own the [monument]â and âthe plot[ ] of
land upon which [the monument was] situated.â
¶ 44 Plaintiff then argues that, upon its placement on the courthouse property, the
monument became a âfixtureâ attached to real property and that its status did not
change when the County sold the property to Winston Courthouse, given that
â[c]hattels of a heavy and permanent character, even though not imbedded or
physically fastened to the land, but merely placed on the land and held in place by
their own weight, such as a monument, are real fixtures,â citing Websterâs Real
Estate Law in North Carolina § 2-1 (5th ed. 1999); Snedeker v. Waring, 12 N.Y. 170
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(1854) (holding that a three-ton statue of George Washington that rested on a stone
foundation without having been otherwise attached to the land constituted a âfixtureâ
that was âpart of the realtyâ)).11 In this case, plaintiff claims, the monument was
âerected and placed upon [the courthouse property] with the express assent of the
Forsyth County Commissionâ and âhas become part of the realty[.]â
¶ 45 Plaintiff further argues that, in order for N.C.G.S. § 100-2.1(b) to apply, the
object in question must be (1) an âobject of remembranceâ and (2) situated on public
property. Plaintiff claims that the monument meets the first of these two criteria
because âit is a monument of a permanent character that commemorates those who
were killed in the Confederate armed forces during the Civil [War], a seminal event
in the history of North Carolina.â According to plaintiff, â[t]here is a factual dispute
concerning whether the [monument] is situated on public property.â In plaintiffâs
view, the monument is located on public property because (1) the monument was
dedicated to the public and accepted by the County; (2) it was situated on real
property belonging to the County; and (3) that the County reserved easements in the
deed conveying the courthouse to Winston Courthouse, which plaintiff believes âis
11 Although plaintiff raised this argument before the Court of Appeals, neither the
majority nor the dissenting opinions addressed it. Even so, in light of our belief that it
involves a purely legal issue and the fact that the law in this area is clear, we elect to address
this contention rather than remanding the case to the Court of Appeals for further
proceedings.
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evidence tending to show that the [monument] continued to be situated on public
property.â
¶ 46 We are not persuaded by any of plaintiffâs arguments. As an initial matter,
plaintiff has completely failed to explain how the Cityâs actions âdenied plaintiff due
process of law.â In order to establish a due process violation, a plaintiff must identify
a cognizable legal right of which it was allegedly deprived by the Cityâs actions. See
State v. Thompson, 349 N.C. 483, 491 (1998) (discussing the differences between
substantive and procedural due process, both of which serve to protect a partyâs legal
rights). Even if N.C.G.S. § 100-2.1 applies in the set of circumstances that is before
us in this case, we are unable to conclude that it confers any legal rights upon plaintiff
sufficient to give rise to any sort of due process claim or other valid legal claim.
¶ 47 â[A] statute may authorize a private right of action either explicitly or
implicitly, though typically, a statute allows for a private cause of action only where
the legislature has expressly provided a private cause of action within the statute.â
Sykes v. Health Network Solutions, Inc., 372 N.C. 326, 338 (2019) (cleaned up); see
also Comm. to Elect Dan Forest, ¶ 68â69 (acknowledging the General Assemblyâs
âpower to create causes of action and permit a plaintiff to recover in the absence of a
traditional injuryâ). As a result, in the event that âthe legislature exercises its power
to create a cause of action under a statute,â âthe plaintiff has standing to vindicate
the legal right so long as he is in the class of persons on whom the statute confers a
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cause of action.â Comm. to Elect Dan Forest, ¶ 82 (emphasis added). Although this
Court has not addressed the circumstances in which a statute implicitly authorizes a
private cause of action, the Court of Appeals has concluded that âan implicit right of
a cause of action exists when a statute requires action from a party, and that party
has failed to comply with the statutory mandate.â Sugar Creek Charter Sch., Inc. v.
Charlotte-Mecklenburg Bd. of Educ., 195 N.C. App. 348, 355 (2009) (citing Lea v.
Grier, 156 N.C. App. 503, 508â09 (2003)).
¶ 48 We are unable to identify anything in N.C.G.S. § 100-2.1, particularly when
read in conjunction with the allegations of the amended complaint, that explicitly
authorizes the assertion of a private cause of action for the purpose of enforcing that
statutory provision.12 The absence of explicit language authorizing the assertion of a
private right of action based on N.C.G.S. § 100-2.1 stands in stark contrast to the
statute at issue in Committee to Elect Dan Forest, which specifically authorized a
candidate for elected office who had complied with the relevant campaign finance
laws to sue an opposing candidate or candidate committee for an alleged violation of
those same laws. See Comm. to Elect Dan Forest, ¶ 6 (citing N.C.G.S. § 163-278.39A(f)
(now repealed)). In addition, even assuming, without deciding, that the Court of
12 After recognizing that the statute âis not self-executing in that no enforcement
mechanism is provided under its terms,â plaintiff simply asserts that âthe statute is a clear
and unequivocal expression of public policy by the General Assembly.â A mere expression of
legislative policy, without more, is not sufficient to support the recognition of a right on the
part of any particular party to assert a private right of action.
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Appeals has correctly identified the circumstances under which a statute implicitly
authorizes a private right of action in Sugar Creek Charter School, nothing in
N.C.G.S. § 100-2.1 ârequires action from a partyâ with which âthat party has failed to
comply[.]â 195 N.C. App. at 356. Instead, N.C.G.S. § 100-2.1 prohibits the removal
or relocation of certain specified objects that are owned by the State or located on
public property. Finally, even if N.C.G.S. § 100-2.1 could be interpreted to implicitly
authorize the assertion of a private right of action, nothing in the relevant statutory
language or the allegations contained in the amended complaint suggests that
plaintiff would be âin the class of persons on which the statute confers the right[.]â
Comm. to Elect Dan Forest, ¶ 67; see also Charles Stores, 263 N.C. at 717 (holding
that â[o]nly one who is in immediate danger of sustaining a direct injury from
legislative action may assail the validity of such action,â and that it âis not sufficient
that he has merely a general interest common to all members of the publicâ).
¶ 49 In addition, we further conclude that, even if plaintiff is entitled to assert a
private right of action to enforce N.C.G.S. § 100-2.1, that statutory provision has no
application to the facts that are before us in this case in light of the allegations
contained in the amended complaint. As an initial matter, it is undisputed that, prior
to its removal, the monument stood on property that had been privately owned by
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Winston Courthouse since 2014.13 Although plaintiff has advanced a number of
arguments in an attempt to avoid the consequences of this undisputed fact, none of
them have any merit. For example, the fact that the deed transferring the old
courthouse property to Winston Courthouse contained an exclusion relating to the
monument and contemplated the reservation of an easement for the monumentâs
maintenance does not, as plaintiff asserts, establish that the County owns the
monument,14 given that a party cannot transfer title to property in which it lacks any
sort of ownership interest. 63C Am. Jur. 2d Property § 43. In the event that the
County did not own the monument, its exclusion from the conveyance could simply
13 N.C.G.S. § 100-2.1 had an effective date of 23 July 2015, which was more than a
year after the County conveyed the old courthouse property to Winston Courthouse. Nothing
in the relevant statutory language suggests that N.C.G.S. § 100-2.1 was intended to have any
sort of retroactive application to transactions that had occurred prior to the statuteâs effective
date. See Cultural History Artifact Management and Patriotism Act of 2015, S.L. 2015-170,
§ 3(c), 2015 N.C. Sess. Laws 435, 437. âIt is a well-established rule of construction in North Carolina that a statute is presumed to have prospective effect only and should not be construed to have a retroactive application unless such an intent is clearly expressed or arises by necessary implication from the terms of the legislation.â State v. Green,350 N.C. 400, 404
(1999).
14 As we have already noted, even though the deed transferring the old courthouse
property from the County to Winston Courthouse contemplates that Winston Courthouse
would execute certain easements in favor of the County, the record contains no indication
that any such easements were ever executed or recorded. âAn express easement must be in
writing pursuant to the Statute of Frauds and be sufficiently certain to permit the
identification and location of the easement with reasonable certainty.â Singleton v. Haywood
Elec. Membership Corp., 151 N.C. App. 197, 202(2002). As a result, a mere agreement to create an easement in the future does not suffice to actually create such an easement, seeid. at 203
(holding that the plaintiffâs contractual obligation to furnish âall necessary easements
and rights-of-wayâ to the defendant did not, by itself, create an easement), and there is no
contention in the amended complaint that any sort of implied easement exists or even could
exist in this situation.
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have reflected the Countyâs recognition that it could not warrant title to that piece of
property, see Culbreth v. Britt Corp., 231 N.C. 76, 80 (1949) (defining a warranty of
title as âan agreement of the warrantor to make good by compensation in money any
loss directly caused by the failure of the title which his deed purports to conveyâ), and
nothing in the amended complaint refutes this assumption. As a result, the mere
exclusion of an item of personal property from a conveyance of real property is not
tantamount to an affirmative claim of ownership over the excluded property.
¶ 50 Although its âfixture-relatedâ argument is not entirely clear to us, plaintiff
appears to be contending that, because the monument was âdedicated to public useâ
at the time that it was placed on the old courthouse property, it became part of the
âreal property belonging in fee simple to Forsyth County.â Although the general rule
in this jurisdiction is that âwhatever is attached to the land is understood to be part
of the realty,â â[w]hether a thing attached to the land be a fixture or chattel personal,
depends upon the agreement of the parties, express or implied.â Lee-Moore Oil Co. v.
Cleary, 295 N.C. 417, 419(1978) (quoting Feimster v. Johnson,64 N.C. 259
, 260â61
(1870)). In this case, however, there is no allegation in the amended complaint nor
any evidence in the record regarding the intent of either plaintiff, its local chapter, or
the County with respect to the issue of whether the monument became âpart of the
realtyâ at the time of its installation. Instead, the amended complaint alleges that
the County granted plaintiff âpermission to erect a memorial.â As we stated in Lee-
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Moore Oil, â[a] building, or other fixture which is ordinarily part of the realty, is held
to be personal property when placed on the land of another by contract or consent of
the owner.â Id.at 420 (quoting Feimster,64 N.C. at 261
).15
¶ 51 Alternatively, plaintiff may be contending that, in the event that the real
property upon which a fixture is located is conveyed to another party and the fixture
is excluded from the conveyance, the real property beneath the fixture is excluded
from the transfer as well. For example, plaintiff argues in its brief that âthe
reservation of easements by the County in its deed conveying the old courthouse for
the purpose of maintaining monuments and plaques on [the courthouse property] is
evidence tending to show that the [monument] continued to be situated on public
property.â However, plaintiff cites no authority in support of this novel proposition,
which cannot be found in any of this Courtâs precedent, and nothing in the amended
complaint serves to justify adoption of plaintiffâs apparent position. Cf. Bond v. Coke,
71 N.C. 97, 100 (1874) (holding that âpersonal chattels which have been fixtures are
15 Although the amended complaint alleges that the monument âwas dedicatedâ
during a ceremony in 1905, it does not explain what plaintiff means by âdedicated.â In its
brief, plaintiff claims, in reliance upon Spaugh, that what occurred in 1905 constituted a
âdedicationâ for âpublic use.â However, Spaugh defined âdedicationâ as âthe intentional
appropriation of land by the owner to some public use.â 239 N.C. at 159 (emphasis added).
Even if Spaugh applies to both personal and real property, we have held that, â[w]here
property is dedicated or set apart without restriction merely for public uses, the municipal
authorities may determine for what use it is appropriate and shall be used, and, if not
irrevocably dedicated or appropriated by them to any particular public use, its use may be
changed as the public convenience and necessities require.â Wishart, 254 N.C. at 96 (quoting
64 C.J.S. Mun. Corp. § 1818).
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incorporated in, and are, a part of the land as much so as a house or tree, until an
actual severance and therefore, a deed conveying the land without excepting therein
the fixtures, has legal effect of passing the [chattels], which are part and parcel of the
landâ) (emphasis added). In the event that we were to accept plaintiffâs argument as
valid, we would necessarily also have to hold that, when a landowner grants timber
rights to another, the grantee gains title not only to the tree but also to the discrete
pieces of land upon which the tree is located. Cf, e.g., Hornthal v. Howcott, 154 N.C.
228 (1911). Such a result would be completely inconsistent with long-standing
principles of North Carolina property law.
¶ 52 The facts at issue in this case are similar to those that were before the Court
of Appeals in National Advertising Co. v. North Carolina Department of
Transportation, in which an advertising company, acting in accordance with a five-
year lease, erected a billboard upon real property that it did not own. 124 N.C. App.
620, 622â23 (1996). After purchasing the property upon which the billboard was
located, the North Carolina Department of Transportation sent a letter to the
advertising company in which it requested that the billboard be removed at the
Departmentâs expense. Id. After the Department removed the sign following the
advertising companyâs refusal to do so, the advertising company sought damages on
the basis of an inverse condemnation claim. Id. at 623. As a result of the fact that
no lease agreement relating to the billboard had ever been recorded, the Court of
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Appeals held that the advertising company did not have any interest in the
underlying real property, that the advertising company had no right to insist that the
billboard remain on the property, and that, since the billboard was âabandoned
property,â the Department had every right to remove the billboard from its property
without paying compensation to the advertising company. Id. at 624â25. In the same
vein, we conclude that, in the event that plaintiff remained the owner of the
monument and that the County had granted permission to place the monument upon
the old courthouse property, the monument had become abandoned property
following the transfer of the old courthouse property to Winston Courthouse, and that
Winston Courthouse, as a subsequent owner, was entitled to have the monument
removed. For all these reasons, we hold that, based on the facts alleged in the
amended complaint and contained in the record that is before us, the monument was
not âlocated on public property,â and N.C.G.S. § 100-2.1(b) has no application to this
case.
¶ 53 Similarly, we are not persuaded that N.C.G.S. § 100-2.1(a) has any bearing
upon the proper resolution of this case given the absence of any allegation in the
amended complaint that the monument is âowned by the State.â Although âcounties
and their respective boards of county commissioners are âcreatures of the General
Assembly and serve as agents and instrumentalities of State government,â â Silver v.
Halifax Cnty. Bd. of Commârs, 371 N.C. 855, 866 (2018) (quoting Stephenson v.
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Bartlett, 355 N.C. 354, 364 (2002)), the General Assembly has specifically authorized
counties to independently acquire, maintain, and dispose of real or personal property,
see N.C.G.S. §§ 153A-158, 169, 176; see also Davis v. Forsyth Cnty., 117 N.C. App.
725, 727 (1995) (concluding that the county was a âpersonâ for purposes of the cartway
statute because âcounties are established as legal entities and are empowered by law
to acquire landâ) (citing N.C.G.S. § 153A-158). Similarly, the North Carolina
Constitution authorizes counties and municipalities to own property independently
of the State. See N.C. Const. art. V, § 2 (providing that â[p]roperty belonging to the
State, counties, and municipalities shall be exempt from taxationâ). As a result, even
if the County owns the monument, that fact would not convert the monument into
State property subject to N.C.G.S. § 100-2.1(a). As a result, for all of these reasons,
N.C.G.S. § 100-2.1 has no bearing upon the proper resolution of this case.
2. N.C.G.S. Chapter 116B (Unclaimed Property)
¶ 54 Secondly, plaintiff argues that the City violated N.C.G.S. §§ 116B-2,16 B-56,
and B-59 by removing the monument from the old courthouse property âwithout first
giving notice and complying with procedures required by such statutes with regard
to abandoned or unclaimed property whose owner cannot be ascertained.â In
plaintiffâs view, â[t]he gist of [its] claim for a declaratory judgment is the initial
determination of ownership of the [monument,]â with N.C.G.S. § 116B-51 et seq.,
16 Recodified at N.C.G.S. § 116B-2.2 (2021).
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having enunciated âcomprehensive guidelines and procedures to be employed in order
to ascertain ownership of the property alleged to be abandoned or unclaimed, and for
the transfer of such property to the State.â According to plaintiff, â[i]f the [monument]
were deemed to be abandoned or unclaimed, it would escheat to the State,â at which
point âthe State would then be subject itself for the manner in which it exercised
possession of the [monument] under [N.C.G.S. § 100-2.1].â Plaintiff asserts that
neither the City nor the County âhas made any effort to invoke the provisions of
Chapter 116B in order to ascertain whether the [monument] has been abandoned or
unclaimedâ and have, instead, âunilaterally undertaken to decide who owns the
[monument], who is responsible for it, and what will be done with it.â In plaintiffâs
view, âdue process of law requires more than the blatant assertion of the right to
decide a question on the part of a governmental unit without giving interested parties
meaningful notice and opportunity to be heard.â
¶ 55 As an initial matter, we note that plaintiff did not present this âabandoned
propertyâ argument to the Court of Appeals or include any allegations supporting it
in the amended complaint, but instead it was advanced for the first time in Judge
Tysonâs dissent. Aside from the fact that âissues and theories of a case not raised
below will not be considered on appeal,â Westminster Homes, Inc. v. Town of Cary
Zoning Bd. of Adjustment, 354 N.C. 298, 309 (2001); see also N.C. R. App. P. 10(a),
arguments raised by a dissenting judge at the Court of Appeals on his or her own
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motion cannot serve as a basis for an appeal to this Court either, see M.E. v. T.J., 380
N.C. 539, 2022-NCSC-23, ¶ 65; see also Viar v. N.C. Depât of Transp.,359 N.C. 400, 402
(2005) (per curium) (noting that â[i]t is not the role of the appellate courts . . . to
create an appeal for an appellantâ). In addition, even if plaintiffâs âabandoned
propertyâ argument was otherwise properly before us, we note that plaintiffâs
amended complaint does not assert a claim under the Unclaimed Property Act and,
instead, demonstrates that no such claim could be sustained.
¶ 56 The Unclaimed Property Act defines âpropertyâ as
(i) money or tangible personal property held by a holder
that is physically located in a safe deposit box or other
safekeeping depository held by a financial institution
within this State or (ii) a fixed and certain interest in
intangible property or money that is held, issued, or owed
in the course of a holderâs business, or by a government,
governmental subdivision, agency, or instrumentality, and
all income or increments therefrom.
N.C.G.S. § 116B-52(11) (emphasis added). In light of this definition, the monument
as described in the amended complaint simply cannot qualify as abandoned property
that has escheated to the State. In addition, nothing in the amended complaint
suggests that plaintiff is within the class of persons entitled to notice before the
monument would escheat to the State. The statute provides that the âapparent
ownerâ of abandoned property is entitled to at least 60 daysâ notice before the holder
of the property reports the property abandoned to the State Treasurer, N.C.G.S.
§§ 116B-59â60, with âapparent ownerâ being defined as âa person whose name
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appears on the records of a holder as the person entitled to property held, issued, or
owing by the holder,â N.C.G.S. § 116B-52(1). As a result, since plaintiff has not
claimed any proprietary or contractual interest in the monument or otherwise alleged
facts that would qualify it as the âapparent ownerâ of the monument, it has failed to
establish a claim for relief under the Unclaimed Property Act.
3. N.C.G.S. § 160A-193 (Abatement of Nuisances)
¶ 57 Thirdly, plaintiff asserts that the City violated N.C.G.S. § 160A-193 by
declaring the monument to be a public nuisance and removing it without providing
plaintiff with the required statutory notice, an opportunity to be heard, and a
reasonable opportunity to make the monument safe. In view of the fact that N.C.G.S.
§ 160A-193 provides, in pertinent part, that â[a] city shall have the authority to
summarily remove, abate, or remedy everything in the city limits, or within one mile
thereof, that is dangerous or prejudicial to the public health or public safety,â
N.C.G.S. § 160A-193(a), plaintiff contends that âthe authority of a city to act under
this statutory grant of authority [without notice] is expressly limited to those
situations in which a building or other structure constitutes an imminent danger to
the public health or safety, creating an emergency necessitating the structureâs
immediate demolition,â and that âcities may not summarily demolish structures
merely because it is quicker and easier to do so than providing the owners notice and
an opportunity to be heard,â citing Monroe, 158 N.C. App. at 278 (2003)). According
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to plaintiff, even though the City âhas alleged in public statements that the
[monument] presented a danger to public safety, there is no evidence that such is the
case.â
¶ 58 In addition, plaintiff contends that, â[i]f a city wishes to destroy a structure
that does not pose an imminent threat to the public, then the city must follow the
procedures required by [N.C.G.S.] §§ 160A-441 through 160A-450,â citing Newton v.
City of Winston-Salem, 92 N.C. App. 446, 449 (1988), which require the City to
âprovid[e] the owner with notice, a hearing, and a reasonable opportunity to bring his
or her dwelling into conformity with the housing code,â citing N.C.G.S. § 160A-443.
In plaintiffâs view, the City âhas unlawfully sought to use its statutory authority to
abate nuisances which pose a threat to public health and safety by making claims
which are patently bogus even under its own court filings in order to avoid the reach
and limitation of [N.C.G.S. § 100-2.1].â Plaintiff contends that, if it were determined
to be the owner of the monument, âit would necessarily follow that [p]laintiff has
standing to defend the placement of the [monument] on [the courthouse property], as
well as to invoke the arguments that the [monument] does not constitute a public
nuisance under [N.C.G.S.] § 160A-193.â
¶ 59 A careful review of the record and the allegations contained in the amended
complaint satisfies us that plaintiff lacks standing to challenge the Cityâs
determination that the monument had become a public nuisance. N.C.G.S. § 160A-
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193(a) authorizes a city to âsummarily remove, abate, or remedy everything in the
city limits . . . that is dangerous or prejudicial to the public health or public safety.â
In Monroe, a case upon which plaintiff places substantial reliance, the Court of
Appeals concluded that N.C.G.S. § 160A-193 authorizes a city âto summarily
demolish a building only if the building constitutes an imminent danger to the public
health or safety, creating an emergency necessitating the buildingâs immediate
demolition,â 158 N.C. App. at 278. Otherwise, the city must comply with the
procedures set forth in Chapter 160A, Article 19 (now Chapter 160D, Article 12),17
including the requirement that it provide notice and an opportunity to be heard to
the owner. Id.; see also Newton, 92 N.C. App. at 451â52 (holding that the city had
failed to give the owner actual notice of its intent to demolish his property, in violation
of the statutory notice requirements) (emphasis added).
¶ 60 N.C.G.S. § 160D-1203, which governs the demolition of a âdwellingâ that is
deemed to be âunfit for human habitation,â provides that
[w]henever a petition is filed with the public officer by a
public authority or by at least five residents of the
jurisdiction charging that any dwelling is unfit for human
17 Although Chapter 160A, Article 19 (N.C.G.S. §§ 160A-441 et seq.) was repealed and
substantively recodified in Chapter 160D, Article 12 (N.C.G.S. § 160D-1201 et seq.), the
provisions upon which plaintiff relies are virtually unchanged. See An Act to Clarify,
Consolidate, and Reorganize the Land-Use Regulatory Laws of the State, S.L. 2019-111, 2019
N.C. Sess. Law 424. In light of this fact and the fact that the new statute is retroactively
applicable, see An Act to Complete the Consolidation of Land-Use Provisions into One
Chapter of the General Statutes, S.L. 2020-25, https://www.ncleg.gov/EnactedLegislation/
SessionLaws/PDF/2019-2020/SL2020-25.pdf, we cite to the current statutory provisions in
the text of this opinion.
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habitation or when it appears to the public officer that any
dwelling is unfit for human habitation, the public officer
shall, if a preliminary investigation discloses a basis for
such charges, issue and cause to be served upon the owner
of and parties in interest in such dwellings a complaint
stating the charges in that respect and containing a notice
that an administrative hearing will be held before the
public officer, or the officerâs designated agent, at a place
within the county in which the property is located.
N.C.G.S. § 160D-1203(2) (emphasis added). An âownerâ for purposes of N.C.G.S.
§ 160D-1203(2) is âthe holder of the title in fee simple and every mortgagee of record,â
while âparties in interestâ is defined as â[a]ll individuals, associations, and
corporations that have an interest of record in a dwelling and any that are in
possession of a dwelling.â N.C.G.S. § 160D-1202(1)â(2). In view of the fact that
plaintiff did not allege in the amended complaint that it had any proprietary or
contractual interest in the monument or that it has an âinterest of recordâ or is âin
possession ofâ the monument, plaintiff is simply not a member of the class of persons
entitled to notice and an opportunity to be heard under N.C.G.S § 160D-1203(2). In
addition, N.C.G.S. § 160D-1201 et seq. only applies to âdwellings,â which is defined as
â[a]ny building, structure, manufactured home, or mobile home, or part thereof, used
and occupied for human habitation or intended to be so used[.]â N.C.G.S. §§ 160D-
102(15), 1201(a) (emphasis added). Given that plaintiff has failed to allege facts
pursuant to which the monument would qualify as a âdwellingâ as defined above, its
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removal is not subject to N.C.G.S. § 160D-1201 et seq. As a result, plaintiffâs
challenges to the Cityâs nuisance declaration are without merit.
D. Federal Law Claims
¶ 61 In addition, plaintiff has advanced a number of arguments in reliance upon
federal law in an apparent attempt to demonstrate that the amended complaint
sufficiently alleged that the County owns the monument and that the City acted
unlawfully in removing it. First, plaintiff asserts that the old courthouse was listed
on the National Register of Historic Places in 2013 at the recommendation of the
County and the North Carolina Department of Cultural and Natural Resources, and
that this is significant because 54 U.S.C. § 302105(a) provides that the property
owner must be given the opportunity to concur in or object to the propertyâs inclusion
on the National Register before that property can be listed there. Plaintiff further
asserts that âthe evidence would show that the [monument] was not excluded from
the application or from the designationâ and that the County had failed to explain
how it âcould initiate and fund the process for [the] designation of [the courthouse] as
a National Historic Landmark without owning the property in the first place[.]â
¶ 62 Secondly, plaintiff argues that, â[a]s a veteranâs memorial and a war grave for
those who did not return home and listed on the National Register, the [monument]
is arguably protected from injury or destruction by the âVeteransâ Memorial
Preservation and Recognition Act of 2003,â â citing 18 U.S.C. § 1369 (2018), and
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asserts that, â[u]nder Federal law, the term âveteranâ is defined to include persons
who âserved for ninety days or more in the active military or nav[a]l service during
the Civil War,â â citing 38 U.S.C. § 1501 (2018). In plaintiffâs view, the City âha[d] no
lawful basis to declare the [monument] to be a public nuisance or to pre-emptively
demand and then unilaterally remove it from a property listed on the National
Register of Historic Places without prior permission or agreement,â nor may it do so
without complying with the applicable state and federal laws, citing 18 U.S.C. § 1369
(2018); 36 C.F.R. § 60.15; N.C.G.S. § 100-2.1(b). We are not persuaded by any of these
arguments.
¶ 63 As an initial matter, we note that, like its arguments relating to the Unclaimed
Property Act, plaintiff failed to assert any claim in reliance upon the Unclaimed
Property Act in the amended complaint or present any argument in reliance upon
that statute to the trial court or the Court of Appeals and, instead, simply adopted
this argument from Judge Tysonâs dissent. For that reason, this argument is not
properly before the Court. See Westminster Homes, 354 N.C. at 309; M.E., ¶ 65; Viar,
359 N.C. at 402; N.C. R. App. P. 10(a). In addition, when considered in light of the
record and the allegations contained in the amended complaint, plaintiffsâ arguments
are completely devoid of merit. A careful reading of the relevant statutory provisions
demonstrates that none of the federal statutes or regulations upon which plaintiff
now relies creates a private cause of action authorizing plaintiff to enforce them. See
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Warth v. Seldin, 422 U.S. 490, 500 (1975) (observing that âthe standing question in
such cases is whether the constitutional or statutory provision on which the claim
rests properly can be understood as granting persons in the plaintiffâs position a right
to judicial reliefâ); Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (concluding that,
even though Congress has the authority to create legal rights by statute, that âdoes
not mean that a plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to authorize that
person to sue to vindicate that rightâ).18 As a result, plaintiff does not have the right
to assert a claim against defendants on the basis of any of the statutory provisions
mentioned in the dissent.
¶ 64 Aside from this fundamental procedural defect in its argument, plaintiff has
failed to explain how the placement of the old courthouse property on the National
Register of Historic Places had the effect of precluding the removal or relocation of
the monument. In the event that plaintiff is seeking to invoke the National Historic
Preservation Act, P.L. 89-665, now codified at 54 U.S.C. 300101 et seq., the only
potentially relevant provision is 54 U.S.C. § 306108, which requires federal agencies,
âprior to the approval of the expenditure of any Federal funds on [any Federal or
federally assisted] undertaking or prior to the issuance of any license, [to] take into
18Unlike claims brought under state law, which do not require a showing of âinjury in
fact,â Committee to Elect Dan Forest, ¶ 85, claims brought under federal law are subject to a
traditional âinjury-in-factâ requirement, Lujan, 504 U.S. at 560.
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account the effect of the undertaking on any historic property.â According to well-
established federal law, the statutorily required review process âapplies by its terms
only to federally funded or federally licensed undertakings.â Natâl Min. Assân v.
Fowler, 324 F.3d 752, 760 (D.C. Cir. 2003) (quoting Sheridan Hist. Assân v.
Christopher, 49 F.3d 750, 755 (1995)) (emphasis in Sheridan). In Monumental Task
Committee, Inc. v. Foxx, a federal district court concluded, on facts similar to those at
issue here, that, unless efforts by the City of New Orleans to remove a controversial
monument were âeither federally funded or federally licensed, [§ 306108] does not
apply.â 240 F. Supp. 3d 487, 496 (E.D. La. 2017). As a result of the fact that plaintiff
â[has] not [alleged or] argued, let alone presented any evidence, that removal of the
[monument] [was] federally funded, permitted, approved, or licensed,â â[§ 306108] is
inapplicable to the removal of the [monument].â Id. Plaintiff also argues that the
City was required to comply with 36 C.F.R. § 60.15, but that regulation governs only
how properties are removed from the National Register and says nothing about what
happens when the property itself is relocated or even demolished altogether.
¶ 65 Finally, plaintiffâs contention that the monument is a âmemorial and war
graveâ that is âprotected from injuryâ or destruction under 18 U.S.C. § 1369 lacks
merit given that the relevant statutory provision only applies to a âstructure, plaque,
statue, or other monumentâ that âis located on property owned by, or under the
jurisdiction of, the Federal Government.â 18 U.S.C. § 1369(b)(2) (emphasis added).
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Aside from the fact that plaintiff has not alleged, and the record does not otherwise
reflect any basis for concluding, that the monument is located on federal land, 18
U.S.C. § 1369 is a criminal statute, and â[p]rivate citizens have no standing to
institute a federal criminal prosecution and no power to enforce a criminal statute.â
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 592 (E.D. La. 2016)
(cleaned up); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that
âa private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of anotherâ).19 As a result, none of plaintiffâs arguments in reliance
upon various provisions of federal law provide any basis for a determination that
plaintiff has the right to maintain the present action against defendants.
E. Dismissal with Prejudice
¶ 66 Finally, plaintiff argues that the trial court erred by dismissing its amended
complaint with prejudice after ruling that plaintiff lacked standing to maintain a
declaratory judgment action regarding ownership of the monument. In plaintiffâs
view, â[a] dismissal for want of jurisdiction under Rule 12(b)(1) does not constitute an
adjudication on the merits of the caseâ and âis without prejudice to a plaintiffâs ability
to bring a second action which is factually and legally sufficient to establish
19 Although plaintiff directs our attention to 24 U.S.C. § 279, which authorized the
Secretary of the Army to furnish headstones for unmarked graves, including those of soldiers
who served in the Union and Confederate armies, that statute was repealed in 1973. See
Pub. L. 93-43, § 7(a)(1), (5), (7). In addition, the effect of this provision upon the viability of
plaintiffâs claims is, at best, unclear.
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jurisdiction in the court before which the second action is brought,â citing
Restatement (Second) of Judgments § 19 (1982). In addition, plaintiff argues that
â[a] personal judgment for the defendant for lack of jurisdiction, although valid and
final, does not bar another action by the plaintiff on the same claim,â citing
Restatement (Second) of Judgments § 20 (1982)); Cline, 92 N.C. App. at 257. As a
result, plaintiff concludes that â[a] court cannot make its order an adjudication on the
meritsâ and dismiss the claim with prejudice âif it lacks the power to decide the merits
of the case in the first place.â
¶ 67 A review of the relevant precedent discloses that both this Court and the Court
of Appeals have held that the absence of standing can be raised in a motion to dismiss
for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).
See, e.g., Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337
(2000); Teague v. Bayer AG, 195 N.C. App. 18, 22 (2009). On the other hand, we have
also consistently recognized that standing is a ânecessary prerequisite to a courtâs
proper exercise of subject matter jurisdiction.â Willomere Cmty. Assân, 370 N.C. at
561 (citations and quotation marks omitted); see also Thomas v. Oxendine, 280 N.C.
App. 526, 2021-NCCOA-661, ¶ 18 (observing that â[s]tanding is required to confer
subject matter jurisdictionâ) (citing Wellons v. White, 229 N.C. App. 164, 176 (2013));
Apple v. Commercial Courier Exp., Inc., 168 N.C. App. 175, 177 (2005) (noting that,
â[i]f a party does not have standing to bring a claim, a court has no subject matter
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jurisdiction to hear the claimâ). In addition, our earlier decisions indicating that the
absence of standing can be asserted by means of a motion to dismiss for failure to
state a claim for which relief can be granted pursuant to Rule 12(b)(6) appear to rest
upon the notion, which we have recently rejected, that standing for purposes of North
Carolina law requires the allegation of an âinjury in fact.â See Comm. to Elect Dan
Forest, ¶ 66 (observing that, âin a common law action where actual injury is a
necessary element of the claim, such as negligence, the proper disposition for failure
to allege actual injury or damages is not dismissal for lack of standing, but dismissal
for failure to state a claim upon which relief can be grantedâ).
¶ 68 âAlthough the practical consequence of dismissal of a complaint under Rule
12(b)(6) or 12(b)(1) is the sameâthe case is dismissedâthe legal effect is quite
different.â Cline, 92 N.C. App. at 263. In the event that a complaint is dismissed for
failure to state a claim, that decision constitutes a final judgment on the merits for
res judicata purposes and bars the plaintiff from maintaining another action on the
basis of this same claim. Rest. (Second) of Judgments § 19 cmt. d. (1982); Clancy v.
Onslow Cnty., 151 N.C. App. 269, 272 (2002) (noting that âit is well settled in this
State that a dismissal under Rule 12(b)(6) operates as an adjudication on the merits
unless the court specifies that the dismissal is without prejudiceâ (cleaned up)). On
the other hand, when a complaint is dismissed for lack of subject matter jurisdiction,
that decision does not result in a final judgment on the merits and does not bar
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further action by the plaintiff on the same claim. Rest. (Second) of Judgments § 20
cmt. e.; Street v. Smart Corp., 157 N.C. App. 303, 305 (2003) (observing that âa
dismissal under [Rule 12]b(1) is not on the merits and thus not given res judicata
effectâ (cleaned up)).
¶ 69 In this case, the trial court dismissed the amended complaint on the basis of a
determination that, since plaintiff lacked standing, it lacked jurisdiction over the
subject matter of plaintiffâs claims. For the reasons set forth above, the trial court
correctly concluded that plaintiff had failed to allege the infringement of a âlegally
enforceable rightâ sufficient to establish standing for purposes of North Carolina law.
See Comm. to Elect Dan Forest, ¶ 85. Thus, since the trial court lacked subject matter
jurisdiction over plaintiffâs claims, the amended complaint was properly dismissed
pursuant to Rule 12(b)(1). N.C.G.S. § 1A-1, Rule 12(b)(1); Catawba Cnty. ex re.
Rackley v. Loggins, 370 N.C. 83, 87 (2017). In view of the fact that the trial lacked
jurisdiction over the subject matter of plaintiffâs claims, the trial court erred by also
dismissing the amended complaint for failure to state a claim for which relief could
be granted pursuant to Rule 12(b)(6), see Flowers v. Blackbeard Sailing Club, Ltd.,
115 N.C. App. 349, 353 (1994) (vacating that portion of the trial courtâs order
dismissing the plaintiffâs complaint with prejudice after affirming the trial courtâs
dismissal decision based on lack of subject matter jurisdiction), disc. rev.
improvidently allowed, 340 N.C. 357 (1995), with the Court of Appeals having erred
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as well by affirming the trial courtâs decision with respect to that issue. As a result,
we vacate the portion of the trial courtâs order dismissing the amended complaint
with prejudice and remand this case to Superior Court, Forsyth County, with
instructions to dismiss the amended complaint without, rather than with, prejudice.
III. Conclusion
¶ 70 Thus, we reaffirm our longstanding rule that a plaintiff must establish
standing to bring an action pursuant to the Declaratory Judgment Act. See Goldston,
at 361 N.C. at 33. As this Court held long ago, the Declaratory Judgment Act âdoes
not license litigants to fish in judicial ponds for legal advice.â Lide v. Mears, 231 N.C.
111, 117 (1949). For the reasons set forth above, we hold that the trial court did not
err by dismissing the amended complaint for lack of standing. On the other hand, we
further hold that the trial court erred by dismissing the amended complaint with,
rather than without, prejudice. As a result, we affirm the Court of Appealsâ decision,
in part; reverse the Court of Appealsâ decision, in part; and remand this case to
Superior Court, Forsyth County, for further proceedings not inconsistent with this
opinion.
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
Chief Justice NEWBY concurring in the result only.
¶ 71 Plaintiff United Daughters of the Confederacy, North Carolina Division, Inc.,
filed an amended complaint on 6 February 2019 against the City of Winston-Salem
(the City), the County of Forsyth (the County), and Winston Courthouse, LLC
challenging the Cityâs decision to remove a monument from Courthouse Square in
Winston-Salem, North Carolina. In its amended complaint, plaintiff alleges that it is
a nonprofit corporation organized under the laws of North Carolina, it is authorized
to do business in the state, and it maintains its principal place of business in Wake
County, North Carolina. Plaintiff describes its organization in the amended
complaint solely with this language and does not identify who is involved in its
organization or indicate where its members reside.1
¶ 72 In its amended complaint, plaintiff alleges that the City declared the
monument a public nuisance and planned to move the monument from Courthouse
Square. Plaintiff alleges that the removal process proposed by the City violates
various rights of plaintiff, including freedom of speech, due process, and equal
protection and constitutes an unlawful seizure. Plaintiff also claims the Cityâs actions
âviolate . . . [N.C.G.S.] Chapter 100, Section 100, et seq, the Protection of Monuments,
Memorial[s,] and Works of Art Actâ and infringe upon the rights, duties, privileges,
1 Plaintiff does identify its local chapter, the James B. Gordon Chapter #211, which is
based out of Winston-Salem, North Carolina, in its amended complaint. The local chapter,
however, filed a notice of voluntary dismissal from the present case on 1 May 2019, prior to
entry of the trial courtâs order, and is not a party to this appeal.
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obligations, liabilities, and immunities of the County and the United States
Department of the Interior.
¶ 73 In its amended complaint, plaintiff asks for a declaratory judgment to
determine the partiesâ rights, duties, privileges, obligations, liabilities, and
immunities with respect to the monument. Plaintiff also requests a declaratory
judgment to determine whether the City misapplied N.C.G.S. § 160A-193 and City
Ordinance 62-3(b) in declaring the monument a public nuisance. Additionally,
plaintiff seeks a preliminary injunction enjoining defendants from altering,
removing, or causing damage to the monument prior to a decision in the case. Because
the City has since removed the monument from Courthouse Square, however, only
plaintiffâs request for a declaratory judgment remains.
¶ 74 The task here is to determine whether the allegations in plaintiffâs amended
complaint are sufficient to establish standing to seek a declaratory judgment.
Standing is a necessary prerequisite to a courtâs proper exercise of subject matter
jurisdiction, Taylor v. City of Raleigh, 290 N.C. 608, 620â21,227 S.E.2d 576
, 583â84
(1976), and standing is required to seek a declaratory judgment, see Goldston v. State,
361 N.C. 26, 33,637 S.E.2d 876, 881
(2006) (holding that the plaintiffs established
standing before âconsider[ing] the form of relief sought by [the] plaintiffs, who [had]
filed a declaratory judgment actionâ). âThe âgist of the question of standingâ is whether
the party seeking relief has âalleged such a personal stake in the outcome of the
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controversy as to assure that concrete adverseness which sharpens the
presentation[s] of issues upon which the court so largely depends for illumination of
difficult constitutional questions.â â Willowmere Cmty. Assân v. City of Charlotte, 370
N.C. 553, 556â57,809 S.E.2d 558, 561
(2018) (alteration in original) (quoting Stanley
v. Depât of Conservation & Dev., 284 N.C. 15, 28,199 S.E.2d 641, 650
(1973)). âUntil
a party has a real and vested interest in the subject matter of a lawsuit, an action
will not lie.â Pierson v. Buyher, 330 N.C. 182, 186,409 S.E.2d 903, 906
(1991).
¶ 75 Here the allegations of plaintiffâs amended complaint fail to establish standing.
Although plaintiff identifies itself as a nonprofit corporation doing business in North
Carolina, plaintiff fails to allege who comprises its organization and where its
members live. Plaintiff does not identify any individual members of its organization
in its amended complaint or allege the requirements for membership. Further, there
is no indication in the amended complaint that any members of plaintiffâs
organization reside in Winston-Salem or Forsyth County. Without more information
regarding the membership of the organization and where its members reside, plaintiff
has failed to demonstrate that its organization or its members have any interest in
the monument that is the subject of this case. Moreover, because plaintiff failed to
include sufficient allegations in its amended complaint regarding its membership and
organizational structure, plaintiff cannot establish taxpayer standing or
associational standing. See Branch v. Bd. of Educ., 233 N.C. 623, 626,65 S.E.2d 124
,
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126 (1951) (â[W]here a plaintiff undertakes to bring a taxpayerâs suit . . . , his
complaint must disclose that he is a taxpayer of the [political] subdivision.â); see also
River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130,388 S.E.2d 538, 555
(1990)
(holding that a litigant may bring suit on an associational standing theory if âits
members would otherwise have standing to sue in their own rightâ (quoting Hunt v.
Wash. State Apple Advert. Comm., 432 U.S. 333, 343 (1977))). Further, plaintiff does
not allege ownership or a legal interest in the monument.
¶ 76 Thus, the bare allegations set forth in plaintiffâs amended complaint are
insufficient to establish standing. See Comm. to Elect Dan Forest v. Emps. Pol. Action
Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 82 (requiring âa person [to] allege[ ] the
infringement of a legal right . . . [for] the legal injury itself [to] give[ ] rise to
standingâ). As such, the Court lacks subject matter jurisdiction over plaintiffâs claims.
Because there is no subject matter jurisdiction over plaintiffâs claims, dismissal of
plaintiffâs amended complaint without prejudice is proper. Therefore, I agree with the
majority that the proper disposition is dismissal without prejudice. Accordingly, I
concur in the result only.
Justices BERGER and BARRINGER join in this concurring opinion.