Meadows v. Iredell County
653 S.E.2d 925
N.C. Ct. App.
2007
Check Treatment
JACKSON, Judge.

John Fletcher Meadows and Kathleen Paige Mcllroy Meadows (“plaintiffs”) appeal the dismissal of their claims against Iredell and Rowan Counties (“defendants”) on 21 February 2007. For the following reasons, we affirm.

*786 Defendants’ County Commissioners passed a resolution on 7 July 1992 to establish by consent the common boundary of the rеspective counties. Plaintiffs purchased land along the common county line on 15 February 1999. The Iredell deed book showed the land was situated in both Iredell and Rowan counties. In 2004, plaintiffs were notified that a portion of their property was located in Rowan County.

Plaintiffs filed their complaint in Iredell County оn 23 October 2006 alleging the statute allowing counties to fix their own boundaries was unconstitutional on its face and as applied. They also alleged violаtions of their due process rights and sought class certification, a return of the county line to its 1789 position, and monetary compensation.

Defendant Irеdell County filed a motion to dismiss pursuant to North Carolina General Statutes, section 1A-1, Rule 12(b)(6) on 28 December 2006. Defendant Rowan County filed a similar motion on 3 Januаry 2007. The motions were heard on or about 19 February 2007 and granted by order filed 21 February 2007. Plaintiffs appealed.

As a preliminary matter, we note that the North Carolina Rules of Appellate Procedure require the appellant’s brief to include a nonargumentative statement of the facts, “supported by references to pages in the transcripts of proceedings, the ‍​​‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​​​‌​​‌‌​​​‌‌‌‌‌​‌​​​​‌​​‌‍record on appeal, or exhibits, as the case may be.” N.C. R. App. P. 28(b)(5) (2007). Plaintiff’s brief сon-, tains only one such reference in over five pages. In addition, the brief contains no statement of the appropriate standard of reviеw.

The argument shall contain a concise statement of the applicable standard(s) of review for each question presented, which shall aрpear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented.

N.C. R. App. P. 28(b)(6) (2007). It is well-established that the Appellate Rules are mandatory, and failure to comply with them subjects the appeal to dismissal. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007). However, as this Court was reminded in Hart, every violation of the rules does not require dismissal; sanctions pursuant to Rules 25(b) or 34 may be appropriate. Id. Pursuant to Rule 34(b)(3), we elect to admonish plaintiff’s counsel to exercise more diligence in preparing briefs for this Court.

When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of ‍​​‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​​​‌​​‌‌​​​‌‌‌‌‌​‌​​​​‌​​‌‍the Nоrth Carolina Rules of Civil Procedure, we must decide *787 “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory[.]” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citing Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)). Rule 12(b)(6) “ ‘generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.’ ” Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970) (quoting American Dairy Queen Corp. v. Augustyn, 278 F. Supp. 717, 721 (N.D. Ill. 1967)). One such bar to recovery is a lack of standing, which may be challenged by a motion to dismiss for failure to state a claim upon which relief may be granted. See, e.g., Krauss v. Wayne County DSS, 347 N.C. 371, 373, 493 S.E.2d 428, 430 (1997) (“The 12(b)(6) motion was made on the basis that plaintiff did not have standing . . . .”).

Although North Carolina courts are not bound by the “case or controversy” requirement of the United States Constitution with respect to the jurisdiction ‍​​‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​​​‌​​‌‌​​​‌‌‌‌‌​‌​​​​‌​​‌‍of federal courts, similar “standing” requirements apply “to refer generally to a party’s right to have a court decide the merits of a dispute.” Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002), disc. rev. denied, 356 N.C. 675, 577 S.E.2d 628 (2003). In Neuse River, this Court defined “[t]he ‘irreducible constitutional minimum’ of standing” as:

(1) “injury in fact” — an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 364 (1992)). Parties without standing to bring a claim, cannot invoke the subject matter jurisdiction of the North Cаrolina courts to hear their claims. Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16, disc. rev. denied, 359 N.C. 632, 613 S.E.2d 688 (2005). In most cases, the issue of standing depends on whether the party has suffered an “injury in fact.” Neuse River, 155 N.C. App. at 114, 574 S.E.2d at 52. See also, Dunn v. Pate, 334 N.C. 115, 119-20, 431 S.E.2d 178, 180-81 (1993); Strates Shows, Inc. v. Amusements of America, Inc., 184 N.C. App. 455, 460, 646 S.E.2d 418, 423 (2007); Coker v. DaimlerChrysler Corp., *788 172 N.C. App. 386, 391, 617 S.E.2d 306, 310 (2005), aff’d, 360 N.C. 398, 627 S.E.2d 461 (2006) (per curiam).

Paragraph twenty-five of plaintiffs’ complaint alleges that the subject resolution was passed on or about 7 July 1992. Paragraph twenty-eight alleges that plaintiffs purchased the subject property on 15 February 1999, and that the deed book indicated the property was situated in both Iredell and Rowan counties. Notwithstanding plaintiffs’ allegation thаt they were not informed of the change in the county line ‍​​‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​​​‌​​‌‌​​​‌‌‌‌‌​‌​​​​‌​​‌‍until 2004, the complaint alleges facts which would put plaintiffs on notice that the property was lоcated in both Iredell and Rowan counties. During their ownership, there has been no change to the status of their property. Any change was made long before plaintiffs purchased the subject property. Therefore, plaintiffs suffered no injury in fact due to the resolution between defendants fixing the county line.

Having suffered no injury in fact, plaintiffs lack standing to invoke the subject matter jurisdiction of our State courts. Plaintiffs stated at oral argument that their complaint sought class certification and that their claims were dismissed prior to certification of the class. If permitted to proceed, they argued that therе would be many plaintiffs who owned property when the resolution was passed and any standing issue would be cured. This argument presumes that the class in fact cоuld be certified.

Rule 23 of the North Carolina Rules of Civil Procedure governs class actions. It states in pertinent part: “If persons constituting a class are sо numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representаtion of all may, on behalf of all, sue or be sued. . . .” N.C. Gen. Stat. § 1A-1, Rule 23(a) (2005). “The purpose of this requirement is to assure the adequacy of the representatiоn afforded the class. As is obvious from the wording of the statute, one who is not a member of the represented class may not bring a class action representing that class.” Carnahan v. Reed, 53 N.C. App. 589, 591, 281 S.E.2d 408, 410 (1981).

In Peverall v. County of Alamance, 184 N.C. App. 88, 645 S.E.2d 416 (2007), a retired county employee sought class certification for all those employees who were, or would be, denied retiremеnt benefits due to a retroactive change in the county’s retirement policy. The trial court found that there were only seven former employees affected by the policy change. Further, the named plaintiff and the other six former employees were denied benefits under different circumstances. *789 The named plaintiff initially had been awarded benefits, but subsequently denied benefits because the change was made effective retroactively. The other six former employees had never been awarded benefits. This Court affirmed the trial court’s denial of class certification and held that

plaintiff’s claim and the other six employees’ claims are disparate in law and fact because their potential claims derive from potentially different insurаnce plans. The evidence supports the trial ‍​​‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​​​‌​​‌‌​​​‌‌‌‌‌​‌​​​​‌​​‌‍court’s findings of fact, and the findings further support the court’s conclusions that plaintiff failed ... to establish that common issues of law and fact predominated over individual issues.

Id. at 93, 645 S.E.2d at 421.

In the case sub judice, plaintiffs did not own property along the Iredell-Rowan county line in 1992. Therefore, they cannot adequately represent the interests of potential class members who did own property along the county line in 1992 when the line was redrawn.

Becаuse the face of plaintiffs’ complaint alleged facts presenting an insurmountable bar to recovery, and plaintiffs were not suitable to represent the proposed class, the dismissal of their claims was proper.

Affirmed.

Judges TYSON and STROUD concur.