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Jackson/Hill Aviation, Inc. v. Town of Ocean Isle Beach

Court of Appeals of North Carolina

February 7, 2017

JACKSON/HILL AVIATION, INC., Plaintiff,
v.
TOWN OF OCEAN ISLE BEACH; DEBBIE S. SMITH, MAYOR; DAISY IVEY, TOWN ADMINISTRATOR; LARRY SELLERS, ASSISTANT TOWN ADMINISTRATOR; D.B. GRANTHAM, COMMISSIONER; R. WAYNE ROWELL, COMMISSIONER; BETTY WILLIAMSON, COMMISSIONER; BOB WILLIAMS, COMMISSIONER; and DEAN WALTERS, COMMISSIONER, Defendants.

          Heard in the Court of Appeals 3 October 2016.

         Appeal by plaintiff from order and judgment entered 2 November 2015 by Judge Ola M. Lewis in Brunswick County, No. 15 CVS 112 Superior Court.

          Thorp & Clarke, P.A., by F. Stuart Clarke, for plaintiff-appellant.

          Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Clay Allen Collier, for defendants-appellees.

          DIETZ, Judge.

         This case concerns the operation of a small airport in the town of Ocean Isle Beach. Jackson/Hill Aviation, Inc. contracted with the town to operate the airport. A dispute later broke out because Jackson/Hill did not always staff the airport with an employee. Ocean Isle Beach asserted that the provisions of a town ordinance require the airport to be staffed during normal business hours and that the contract requires Jackson/Hill to comply with that ordinance. Thus, the town argued, Jackson/Hill breached the contract.

         After the town took over control of the airport and locked Jackson/Hill out, the company sued. Ocean Isle Beach moved to dismiss, pointing to Jackson/Hill's admission in the complaint that it did not staff the airport during all normal business hours, to the terms of the contract (attached to the complaint), and to the terms of the town's ordinance, which the town attached to its motion to dismiss. The trial court granted the motion and dismissed all claims.

         We reverse. The town's ordinance is not mentioned in the complaint, and it is well-settled that courts "cannot take judicial notice of the provisions of municipal ordinances." McEwen Funeral Serv., Inc. v. Charlotte City Coach Lines, Inc., 248 N.C. 146, 150-51, 102 S.E.2d 816, 820 (1958). Because all of the town's arguments for dismissal require consideration of the terms of the ordinance, dismissal under Rule 12(b)(6) was improper. Moreover, even if the ordinance could be considered at the pleadings stage, Jackson/Hill asserts waiver and estoppel arguments that would preclude judgment as a matter of law at the pleadings stage. Accordingly, we reverse the trial court and remand for further proceedings consistent with this opinion.

         Facts and Procedural History

         Jackson/Hill Aviation, Inc. operated a small airport on property it leased from the Town of Ocean Isle Beach. In 2014, the parties began to dispute the scope of the contract and, in particular, whether the contract required Jackson/Hill to staff the airport with at least one employee during all normal business hours. The contract, which is attached to the complaint, provides as follows:

Both parties anticipate that the property shall be used as a fixed based [sic] operation, with fuel services and other services as may be reasonable due to the traffic and clientele demands. . . . LESSOR agrees that the structure, while intended to permit it to operate a business for the repair, maintenance, painting, refurbishing, tooling and retooling and outfitting of aircraft shall be open and operational during regular business hours based upon the following schedule:
a) From Good Friday of each year through Labor Day, Monday through Saturday from 9:00 a.m. until 5:00 p.m.; b) At all other times of the year the facility will be open from 9:00 a.m. until 5:00 p.m. on Saturday and Sunday of each week; c) The facility will provide a fuel operation that will provide fuel at all times of the day and night, every day of the year; d) The facility will provide for access to a restroom and a telephone for pilots who will be provided with a means to gain safe access to the facility that is in keeping with general FAA rules and regulations.
TENANT shall, at all times, in the use and occupancy of the Demised Premises and the performance of this lease, comply with all State, Federal and local governmental laws, regulatory, statutory or other, rules or regulations applicable ...

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