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Walker v. Hoke County

Court of Appeals of North Carolina

June 19, 2018

RUSSELL WALKER, Plaintiff,
v.
HOKE COUNTY et al., Defendants.

          Heard in the Court of Appeals 18 September 2017.

          Appeal by plaintiff from order entered 16 February 2017 by Judge James F. Ammons, Jr. in Hoke County No. 16-CVS-771 Superior Court.

          Russell F. Walker, pro se, plaintiff-appellant.

          Locklear, Jacobs, Hunt & Brooks, by Grady L. Hunt, for defendant-appellee Hoke County.

          Moser and Bruner, P.A., by Jerry L. Bruner, for defendant-appellee Fifth Third Bank, Inc.

          Horack Talley Pharr & Lowndes, P.A., by Robert B. McNeill and Christopher T. Hood, for defendant-appellee Tyton NC Biofuels LLC.

          BERGER, Judge.

         Russell F. Walker ("Plaintiff") appeals an order granting Hoke County, Fifth Third Bank, Inc., and Tyton NC Biofuels, LLC's (collectively "Defendants") motion to dismiss Plaintiff's complaint for lack of standing and failure to state a claim under Rules 12(b)(1) and (6) of the North Carolina Rules of Civil Procedure. Plaintiff argues the trial court erred because he sufficiently established standing as a taxpayer of Hoke County, and has suffered an injury from which a favorable judgment on his claims can grant him relief. We disagree.

         Factual and Procedural Background

         On March 26, 2008, Hoke County conveyed a 500 acre tract of land by Special Warranty Deed ("the Deed") to Clean Burn Fuels, LLC ("Clean Burn"). Clean Burn built an ethanol plant on the land, but after financial problems the lender foreclosed on the property in 2011. In 2014, Tyton NC Biofuels, LLC purchased the property and obtained a loan from Fifth Third Bank, Inc. The loan was secured by a deed of trust on the 500 acre tract of land.[1]

         On December 20, 2016, Plaintiff filed a complaint in Hoke County Superior Court seeking to set aside the original deed from Hoke County to Clean Burn, revoke the deed of trust, and remove from office elected officials who approved the transfer. In January 2017, Defendants filed answers to Plaintiff's complaint and motions to dismiss for lack of standing and failure to state a claim for which relief can be granted. On January 19, 2017, Plaintiff filed a motion for summary judgment alleging no genuine issue of material fact. A hearing was held on Defendants' motions to dismiss and Plaintiff's motion for summary judgment. The trial court denied Plaintiff's motion for summary judgment and granted Defendants' motions to dismiss with prejudice. Plaintiff appeals.

         Analysis

         "In our de novo review of a motion to dismiss for lack of standing, we view the allegations as true and the supporting record in the light most favorable to the non-moving party." Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008).

         "Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." Aubin v. Susi, 149 N.C.App. 320, 324, 560 S.E.2d 875, 878, disc.rev. denied, 356 N.C. 610, 574 S.E.2d 474 (2002) (citation omitted). "[O]nly one with a genuine grievance" can bring a valid complaint. Mangum, 362 N.C. at 642, 669 S.E.2d at 282 ...


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