McCoy v. City of Charlotte

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-219 NORTH CAROLINA COURT OF APPEALS Filed: 2 October 2012 JAMES MCCOY d/b/a JMJ PROPERTIES AND ASSOCIATES, II, LLC, Plaintiff v. Mecklenburg County No. 11 CVS 10836 CITY OF CHARLOTTE, Defendant Appeal by plaintiff from order entered 17 October 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 August 2012. Pamela A. Hunter, for plaintiff-appellant. Thomas E. Powers III and Anna Schleunes, for defendantappellee. CALABRIA, Judge. James McCoy d/b/a JMJ Properties and Associates, II, LLC ( plaintiff ) appeals from the trial court s order granting the City of Charlotte s ( defendant ) motion to dismiss for lack of subject matter jurisdiction. We affirm. I. Background -2Plaintiff is the owner of real property located at 200 Mill Road in Charlotte, North Carolina ( the property ). On 26 April 2010, Michael Johnson ( Johnson ), a Code Enforcement Inspector for defendant, sent plaintiff a Complaint and Notice of Hearing regarding several violations of defendant s Housing Code which Johnson had witnessed. According to the notice, a hearing on the violations was scheduled for 24 May 2010. Plaintiff did not attend the hearing. May 2010, Johnson entered an order As a result, on 27 requiring plaintiff demolish the property on or before 30 June 2010. to The order stated that plaintiff could send Johnson a written notice of his intent to repair the property or appeal Johnson s order to the Charlotte Housing Appeals Board within 10 days. Plaintiff ( McCloud ), building hired to permit a repair to repair the repair contractor, property. the property Robert McCloud on 20 McCloud obtained July a 2010. However, Johnson was unaware that plaintiff had made attempts to repair the property, because plaintiff neither sent Johnson a written notice informing him that he had hired McCloud to repair the property nor appealed Johnson s order. On 13 September 2010, the Charlotte City Council enacted an ordinance authorizing an in rem demolition of the property ( the -3demolition ordinance ). The property was demolished in early October 2010. After the property had been demolished, plaintiff filed a petition for writ of certiorari ( the petition ) in Mecklenburg County Superior Court, seeking judicial review of defendant s demolition of the property. The petition alleged that the demolition violated N.C. Gen. Stat. § 160-393, et. seq. and also violated plaintiff s due process rights. In response, defendant filed a motion to dismiss plaintiff s petition pursuant to Rule 12(b)(1). On 6 January 2011, the Honorable Richard D. Boner ( Judge Boner ) entered an order denying defendant s motion to dismiss. However, on 16 March 2011, plaintiff voluntarily dismissed his petition without prejudice. On 2 June 2011, plaintiff filed a new complaint against defendant regarding the demolition several new causes of action. ordinance, which contained In response, defendant filed a motion to dismiss pursuant to Rule 12(b)(1). October 2011, the Honorable Hugh granted defendant s motion to dismiss. II. B. Lewis ( Judge again On 17 Lewis ) Plaintiff appeals. Subject Matter Jurisdiction Plaintiff argues that the trial court erred in granting defendant s motion to dismiss for lack of subject matter -4jurisdiction because Judge Lewis was bound by Judge Boner s prior denial of defendant s motion to dismiss the petition in his previously filed case. We disagree. Subject-matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Haker Volkening v. Haker, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130 (2001). A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment. * * * So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding. Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)(internal quotations and citations omitted); see also N.C. Gen. Stat. § 1A-1, Rule 12(h)(3) (2011)( Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. ). Consequently, [t]he question of subject matter jurisdiction may be raised at any time, even in the Supreme Court. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, -5350 S.E.2d 83, 85 (1986)(emphasis added). Based upon these principles, Judge Lewis was permitted to independently consider defendant s motion to dismiss for lack of subject matter jurisdiction, regardless of Judge Boner s order in plaintiff s previous case. judge in the instant case, Judge Lewis, as the trial court possessed the inherent judicial power to inquire into, hear and determine questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. Id. at 580, 350 S.E.2d at 86. Accordingly, the trial court properly considered and ruled upon defendant s motion to dismiss for lack of subject matter jurisdiction. III. This argument is overruled. The Demolition Ordinance Plaintiff argues that the trial court erred by granting defendant s superior motion court to was demolition ordinance. dismiss the because proper method plaintiff s of claim challenging in the We disagree. Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). Where a plaintiff has failed to exhaust its administrative remedies, its action brought in the trial court may be dismissed for lack of -6subject matter jurisdiction. Vanwijk v. Prof'l Nursing Servs., ___ N.C. App. ___, ___, 713 S.E.2d 766, 768 (2011). Plaintiff contends that he was entitled to judicial review of the demolition ordinance under N.C. Gen. Stat. § 160A-393 and N.C. Gen. Stat. § 63-34. However, neither of these statutes are applicable to the instant case. N.C. Gen. Stat. § 160A-393 governs the procedure for Appeals in the Nature of Certiorari in city and town zoning cases. N.C. Gen. Stat. § 160A-393 Under N.C. Gen. Stat. § 63-34, also governs the judicial review of airport zoning regulations. procedure for N.C. Gen. Stat. § 63-34 (2011)(A petition for judicial review under the Model Airport Zoning Act shall be filed within 30 days after the decision is filed in the office of the board. Such petition shall comply with the provisions of G.S. 160A-393. ). instant case involves minimum housing standards, Since the rather than zoning regulations, the statutory provisions cited by plaintiff do not apply to plaintiff s challenge to the demolition ordinance. Instead, the instant case is governed by N.C. Gen. Stat. § 160A-446 (2011), which delineates the administrative remedies which are available to a property owner who is aggrieved by an order of a public officer regarding minimum housing standards. -7Harrell v. City of Winston-Salem, 22 N.C. App. 386, 391, 206 S.E.2d 802, 806 (1974). Under this statute, [a]n appeal from any decision or order of the public officer may be taken by any person aggrieved thereby or by any officer, board or commission of the city. Any appeal from the public officer shall be taken within 10 days from the rendering of the decision or service of the order by filing with the public officer and with the board a notice of appeal which shall specify the grounds upon which the appeal is based. N.C. Gen. Stat. § 160A-446(c) (2011). If that appeal is unsuccessful, the decision of the board shall be subject to review by proceedings in the nature of certiorari instituted within 15 days of the decision of the board, but not otherwise. Id. (e) (2011). In addition, [a]ny person aggrieved by an order issued by the public officer or a decision rendered by the board may petition the superior court for an injunction restraining the public officer from carrying out the order or decision and the court may, upon such petition, issue a temporary injunction restraining the public officer pending a final disposition of the cause. The petition shall be filed within 30 days after issuance of the order or rendering of the decision. Id. (f) (2011). In the instant case, Johnson entered his findings and order to demolish the property on 27 May 2010. The order notified plaintiff that he could submit to Johnson written notice of his -8intent to repair compliance plaintiff with was the property defendant s specifically in order Housing notified to Code. that he bring it In had into addition, 10 days to appeal Johnson s order to the Charlotte Housing Appeals Board. However, plaintiff failed to avail himself of this right to appeal. Moreover, plaintiff did not petition the superior court to enjoin Johnson s order. Thus, plaintiff failed to utilize the administrative remedies contained in N.C. Gen. Stat. § 160A446. Instead, plaintiff filed a petition for judicial review of the demolition ordinance on 8 October 2010, months after Johnson had entered his order. more than four Plaintiff s actions are similar to those of the plaintiffs in Harrell, where this Court held that the record on its face reveals that the plaintiffs have not followed the proper review procedure as set forth in G.S. § 160A 446, but rather have attempted to circumvent the established procedure by filing the cause of action now being considered. Plaintiffs must exhaust the administrative remedies available to them, and they cannot be allowed to undermine the prescribed statutory procedure set forth in G.S. § 160A 446. 22 N.C. App. at 391-92, 206 S.E.2d at 806. Since plaintiff in the instant case also failed to follow the review procedure -9established in N.C. Gen. Stat. § 160A-446 to appeal Johnson s order, he remedies. likewise has failed Accordingly, the to exhaust trial court his administrative properly dismissed plaintiff s complaint for lack of subject matter jurisdiction. See Vanwijk, ___ N.C. App. at ___, 713 S.E.2d at 768. This argument is overruled. IV. Since time, the subject trial defendant s motion jurisdiction. matter court to Conclusion jurisdiction properly dismiss may be considered for lack of raised and at ruled subject any upon matter Plaintiff failed to exhaust his administrative remedies under N.C. Gen. Stat. § 160A-446. Accordingly, the trial court properly granted defendant s motion to dismiss. trial court s order is affirmed. Affirmed. Judges ELMORE and STEPHENS concur. Report per Rule 30(e). The

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.