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Meinck v. City of Gastonia

Court of Appeals of North Carolina

March 21, 2017

JOAN A. MEINCK, Plaintiff,
v.
CITY OF GASTONIA, a North Carolina Municipal Corporation, Defendant.

          Heard in the Court of Appeals 22 February 2017

         Appeal by plaintiff from order entered 1 June 2016 by Judge Lisa Bell in Gaston County No. 15 CVS 423 Superior Court.

          Law Office of Thomas D. Bumgardner, PLLC, by Thomas D. Bumgardner, for plaintiff-appellant.

          Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond Thompson and Ryan L. Bostic for defendant-appellee.

          TYSON, Judge.

         Joan Meinck ("Plaintiff") appeals from an order granting summary judgment in favor of the City of Gastonia ("Defendant"). We reverse and remand.

         I. Background

         Defendant owns a commercial building located at 212 West Main Avenue in Gastonia, North Carolina. The building is located within a downtown revitalization district established by Defendant in a 1999 city resolution. Defendant did not use the building to house any municipal or government departments or offices.

         Beginning in 2013, Defendant leased the building to the Gaston County Art Guild ("Art Guild"), a private non-profit entity unaffiliated with either Defendant or Gaston County. Defendant leased the building as an effort to fill a vacancy and help remove a blight from vacant buildings on the downtown area. Defendant's evidence tends to show Defendant did not seek to make a profit from the lease. Defendant retained the responsibility for maintaining the exterior of the premises and the right to inspect the building at any time.

         The lease agreement between Defendant and the Art Guild limited the Art Guild's uses of 212 West Main Avenue to an "art gallery and artists' studios and a gift shop." The lease agreement provided for four separate means of compensation to Defendant. The first method required the Art Guild to pay Defendant 90% of all rent money it received from subtenants. The second method guaranteed Defendant 30% of the gross sales receipts received for art the Art Guild sold on the premises. The third method required subtenants of the Art Guild to disgorge 15% of their gross sales receipts to Defendant. The fourth method required subtenants to provide a minimum of fifteen hours of volunteer time each month working on tending to the gallery and the gift shop. In addition to the minimum required volunteer time, subtenants were also tasked to arrange sales shows, serve on committees, or help manage other subtenants.

         The subleased space in 212 West Main Avenue contained enough room for nineteen private art studios for subtenants. Plaintiff was one of the subtenants of the Art Guild. Plaintiff paid $95.00 per month to rent space inside 212 West Main Avenue, 90% of which was paid to Defendant.

         For the 2013 fiscal year, Defendant expended $33, 062.01 on 212 West Main Avenue and received revenues of $21, 572.98 from the Art Guild's lease, a loss of $11, 489.03. For the 2014 fiscal year, Defendant expended $40, 008.13 and received revenues of $21, 935.57, a loss of $18, 072.56.

         On 11 December 2013, Plaintiff left through the rear exit of 212 West Main Avenue, and she carried several large pictures, lost her balance on a set of steps, and fell. As a result of her fall, Plaintiff suffered a broken hip, required hospitalization, and incurred medical expenses. Portions of the cement on the steps had apparently eroded. As a result of carrying large pictures, Plaintiff was prevented from seeing where she was stepping.

         On 4 February 2015, Plaintiff filed a complaint and alleged Defendant had negligently failed to maintain the exit of the building or to warn of the dangerous condition of the exit. On 12 January 2016, Defendant filed a motion for summary judgment asserting governmental immunity as an affirmative defense. The trial court granted Defendant's motion on that basis. Plaintiff appeals.

         II. Statement of Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1), which provides for an appeal of right from any final judgment of a superior court. N.C. Gen. Stat. § 7A-27(b)(1) (2015).

         III. ...


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