Yates v. City of Raleigh

• Decision Date: 15 April 1980
• Docket Number: No. 7910SC930,7910SC930
• Parties: Dexter YATES v. CITY OF RALEIGH; Housing and Nuisance Division of the Public Works Departmentof the City of Raleigh; B. Wayne Cameron; and Beal Bartholomew.
• Court: North Carolina Court of Appeals

Page 798

264 S.E.2d 798

46 N.C.App. 221

Dexter YATES v. CITY OF RALEIGH; Housing and Nuisance Division of the Public

Works Departmentof the City of Raleigh; B. Wayne

Cameron; and Beal Bartholomew.

No. 7910SC930.

Court of Appeals of North Carolina.

April 15, 1980.

Kimzey, Smith & McMillan by Duncan A. McMillan, Raleigh, for plaintiff-appellant.

City Atty. Thomas A. McCormick, Jr., Raleigh, for defendants-appellees.

HEDRICK, Judge.

At the outset we point out that the record on appeal is remarkable in what it fails to contain. The ordinance pleaded by the plaintiff as being unconstitutional, cited by the defendants as their authority for taking plaintiff's property, and finally declared constitutional by the trial judge, is not in the record, and as far as the record discloses, was not introduced into evidence. The provisions of the City Charter to which the judge referred in his order and apparently upon which he relied to some extent to support the order of dismissal are not in the record, and as far as we can determine, were not introduced into evidence. The notice provided to the property owners pursuant to the ordinance, which is challenged by the plaintiff for its alleged inadequacy, cited by the defendants in conjunction with the ordinance for their authority in allegedly removing plaintiff's property to the city dump, and declared adequate in the judge's order of dismissal, is likewise conspicuous for its absence from the record and, supposedly, was not offered into evidence. The "oral motion" made by the defendants "to dismiss" plaintiff's claim "on the pleadings," and apparently ruled on in the order of dismissal, is not in the record for our perusal and analysis. Finally, the evidence on which defendants relied to demonstrate that the City had not waived its governmental immunity by procuring liability insurance, also recited in the order of dismissal as the primary basis for the order, and declared by defendants at oral argument to be the principal reason for the dismissal, does not appear in the record.

We think it hardly necessary to elaborate further on the deplorable deficiencies of the record. Its condition compels us, however, to treat the Order appealed from as one dismissing plaintiff's claim pursuant to Rule 12(b) (6), G.S. § 1A-1, for failure to state a claim upon which relief can be granted.

"The sufficiency of a claim to withstand a motion to dismiss is tested by its success or failure in setting out a state of facts which, when liberally considered, would entitle plaintiff to some relief." Carolina Builders Corp. v. AAA Dry Wall, Inc., 43 N.C.App. 444, 446, 259 S.E.2d 364, 366 (1979). If it appears to a certainty that no state of facts could be proved in support of the claim so as to entitle plaintiff to some relief, the complaint should be dismissed. 2A Moore's Federal Practice § 12.08 (1979). Accord, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Kelly v. Briles, 35 N.C.App. 714, 242 S.E.2d 883 (1978).

With respect to the claim alleging a wrongful appropriation of private property set out in this plaintiff's complaint, we find the decision of Justice (later Chief Justice) Bobbitt in Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960), instructive. In Rhyne, plaintiff alleged that agents of the defendant Town entered upon his property with a bulldozer and, in the process of cutting down weeds claimed to constitute a nuisance, they also bulldozed away more than 100 oak saplings growing on the property. The town defended its action on the grounds that a local ordinance authorized it to cut weeds in an effort to abate a nuisance and that its actions under the ordinance were performed in the exercise of a governmental function. Thus, the town claimed that it was protected by sovereign immunity. The plaintiff contended that the town had acted in excess of the authority conferred it by the provisions of the ordinance and therefore could not shield itself from liability by claiming governmental immunity. The jury rendered a verdict for plaintiff. On appeal by the defendant, Justice Bobbitt stated the relevant inquiry as follows Where defendant, acting under its power to abate a nuisance constituting a menace to health, goes upon plaintiff's lot, without plaintiff's permission or consent, for the purpose of eradicating what defendant deems to be such nuisance, and in so doing destroys trees thereon that do not in fact constitute a nuisance, is plaintiff's right to recover compensation for the impairment in value of his property caused by the destruction of the trees defeated because of defendant was then engaged in the performance of a governmental function?

Id. at 525, 112 S.E.2d at 44. Justice Bobbitt answered the question with a resounding "No," and affirmed the verdict for the plaintiff. We find his reasoning as persuasive, and the principles of law on which he relied as sound, today as then. Citing numerous North Carolina cases as well as decisions from many other jurisdictions in support, he concluded:

Where a municipal corporation, in the exercise of its governmental power to abate nuisances, enters upon and damages private property by the destruction of trees, buildings,...