              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA 17-341

                                 Filed: 19 June 2018

Hoke County, No. 16-CVS-771

RUSSELL WALKER, Plaintiff,

             v.

HOKE COUNTY et al., Defendants.


      Appeal by plaintiff from order entered 16 February 2017 by Judge James F.

Ammons, Jr. in Hoke County Superior Court. Heard in the Court of Appeals 18

September 2017.


      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
                                       WALKER V. HOKE CTY.

                                         Opinion of the Court



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




      1   Specific prices, dates, and transactions are not included in the record on appeal.

                                                  -2-
                                  WALKER V. HOKE CTY.

                                    Opinion of the Court



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 (citations omitted). To establish standing, three elements must be

satisfied:

              (1) injury in fact – an invasion of a legally protected interest
              that is (a) concrete and particularized and (b) actual or
              imminent, not conjectural or hypothetical; (2) the injury is
              fairly traceable to the challenged action of the defendant;
              and (3) it is likely, as opposed to merely speculative, that
              the injury will be redressed by a favorable decision.

Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d

48, 52 (2002) (citation and internal quotation marks omitted), disc. rev. denied, 356

N.C. 675, 577 S.E.2d 628 (2003). “Standing most often turns on whether the party

has alleged ‘injury in fact’ in light of the applicable statutes or caselaw.” Id. Further,


                                           -3-
                                WALKER V. HOKE CTY.

                                  Opinion of the Court



“a plaintiff must demonstrate standing separately for each form of relief sought.”

Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185, 145 L.

Ed. 2d 610, 629 (2000).

      Historically, “taxpayers have standing to challenge the allegedly illegal or

unconstitutional disbursement of tax funds by local officials.” Goldston v. State, 361

N.C. 26, 31, 637 S.E.2d 876, 879-80 (2006). However, to establish an injury as a

taxpayer, the individual must allege “a misuse of public funds in violation of state

statute,” instead of merely “challenging the wisdom of the County’s decision.” Reese

v. Mecklenburg Cnty., N.C., 204 N.C. App. 410, 426, 694 S.E.2d 453, 464, disc. rev.

denied, 364 N.C. 326, 700 S.E.2d 924 (2010).

      In prior cases before our Supreme Court, taxpayers have been granted

standing to bring an action against local and state government bodies when they have

alleged an injury that is concrete, traceable, and particular to a specific action in

violation of an applicable statute. See Goldston, 361 N.C. at 30-33, 637 S.E.2d at 879-

81; McIntyre v. Clarkson, 254 N.C. 510, 513-14, 119 S.E.2d 888, 890-91 (1961)

(holding a taxpayer had standing to facially challenge the constitutionality of a

statute). Goldston v. State noted “the right of a citizen and taxpayer to maintain an

action in the courts to restrain the unlawful use of public funds to his injury cannot

be denied.” Goldston, 361 N.C. at 33, 637 S.E.2d at 881 (citation and quotation marks

omitted) (emphasis added).



                                         -4-
                                 WALKER V. HOKE CTY.

                                   Opinion of the Court



      In the case sub judice, Plaintiff has failed to establish standing for each of his

claims for relief. In his complaint, Plaintiff failed to allege that he is a taxpayer.

Moreover, even if we were to assume Plaintiff is a Hoke County taxpayer, he has not

asserted a traceable, concrete, and particularized injury resulting from the transfer

of the 500 acre tract of land between the parties named in his complaint. Even in the

light most favorable to the non-moving party, we find no injury in fact under “any set

of facts to support his claim which would entitle him to relief.” Block v. County of

Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000).

      In addition, Plaintiff seeks removal of various elected officials stemming from

transfer of the property. However, standing pursuant to N.C. Gen. Stat. § 153A-77

and the common law removal procedure known as “amotion” does not derive from

taxpayer status, but instead from the county board of commissioners. Section 153A-

77 provides in pertinent part:

             A member may be removed from office by the county board
             of commissioners for (i) commission of a felony or other
             crime involving moral turpitude; (ii) violation of a State law
             governing conflict of interest; (iii) violation of a written
             policy adopted by the county board of commissioners; (iv)
             habitual failure to attend meetings; (v) conduct that tends
             to bring the office into disrepute; or (vi) failure to maintain
             qualifications for appointment required under this
             subsection. A board member may be removed only after
             the member has been given written notice of the basis
             for removal and has had the opportunity to respond.

N.C. Gen. Stat. § 153A-77(c) (2017).



                                          -5-
                                    WALKER V. HOKE CTY.

                                       Opinion of the Court



       Removal by amotion is a “quasi-judicial” procedure employed by the board or

commission from which the member is being removed for cause. Russ v. Board of

Education, 232 N.C. 128, 129-30, 59 S.E.2d 589, 591 (1950); see also Burke v. Jenkins,

148 N.C. 25, 61 S.E. 608 (1908).2 An amotion proceeding “could not be taken without

notice and an opportunity to be heard, except where the officer is removable without

cause at the will of the appointing power.” Stephens v. Dowell, 208 N.C. 555, 561, 181

S.E. 629, 632 (1935) (citations omitted). Plaintiff has not alleged in his complaint or

on appeal that he is a member of any elected or appointed office. Because Plaintiff is

not a member of any of the boards from which he seeks to remove members, we affirm

the trial court’s order dismissing Plaintiff’s claims for lack of standing.

       Accordingly, we find the trial court did not err by dismissing Plaintiff’s

complaint for lack of standing pursuant to Rule 12(b)(1) of the North Carolina Rules

of Civil Procedure. Because we find that Plaintiff does not have standing to pursue

the claims in his complaint, we need not reach any further issues argued by Plaintiff

on appeal.

                                          Conclusion




       2 The most recent amotion proceeding in North Carolina was in 2013 in Berger v. New Hanover
County Bd. of Comm’rs., 2013 NCBC 45, 2013 WL 4792508 (2013) (unpublished), where the New
Hanover County Superior Court upheld the removal of a local County Commissioner and recognized
the validity of the amotion procedure when “accompanied by appropriate procedural safeguards and
the Board’s findings and conclusions were supported by sufficient competent evidence.” Id. at *11.

                                              -6-
                                WALKER V. HOKE CTY.

                                  Opinion of the Court



      The trial court did not err in granting Defendants’ motion to dismiss Plaintiff’s

complaint for lack of standing under Rule 12(b)(1) of the North Carolina Rules of Civil

Procedure. Accordingly, we affirm the trial court’s order.

      AFFIRMED.

      Chief Judge MCGEE and Judge DIETZ concur.




                                         -7-
