                          NO. COA13-1222

                  NORTH CAROLINA COURT OF APPEALS

                        Filed: 1 July 2014


DAVID R. COX
     Plaintiff,

    v.                              Pamlico County
                                    No. 12 CVS 121
TOWN OF ORIENTAL and BOARD OF
COMMISSIONERS OF THE TOWN OF
ORIENTAL,
     Defendants.


    Appeal by Plaintiff from Orders entered 10 April 2013 by

Judge Benjamin G. Alford in Pamlico County Superior Court. Heard

in the Court of Appeals 23 April 2014.


    McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby
    H. Smith, III, for Plaintiff.

    Davis Hartman Wright, PLLC, by Michael Scott Davis and I.
    Clark Wright, Jr., for Defendants.


    STEPHENS, Judge.


           Procedural History and Factual Background

    This case arises from the decision of the Town of Oriental

and its Board of Commissioners (collectively, “Defendants”) to

permanently close Avenue A and a portion of South Avenue, public

rights of way in the Town. On 2 August 2012, Plaintiff David R.

Cox filed an appeal from the Town ordinance vacating Avenue A
                                              -2-
and   an       action       for   declaratory        judgment     in    Pamlico    County

Superior Court.1 In his appeal and action, Plaintiff alleged the

following relevant facts:

      The Town sits on the Neuse River. On 13 January 2012, the

Board met to consider “the possibilities of sale or exchange of

property in the vicinity of the [W]est end terminus of South

Avenue and Avenue A.” South Avenue and Avenue A are situated on

a peninsula that borders the Neuse River on the South and a

tributary called Raccoon Creek on the West. Raccoon Creek is the

location of the Town’s harbor.

      Chris Fulcher wrote to the Town Manager on 23 January 2012

and   proposed         to    exchange    a    portion    of     his    property    on   the

Raccoon        Creek    side      of    the    peninsula        (“the    Raccoon    Creek

property”) for the Town’s interest in Avenue A and the South

Avenue terminus. Fulcher owns all property on either side of

Avenue     A    and    the    South     Avenue      terminus.    The    Board   voted    to

accept the proposal on 10 February 2012 and executed a contract

on 23 May 2012. The contract indicated that the transfer would

1
  According to Plaintiff’s 2 August 2012 appeal and action, the
ordinance operated to vacate only Avenue A, not the relevant
portion of South Avenue. Plaintiff alleges that he was required
to file this action before the Town completed the closing
process, however, because of certain procedural restrictions.
Thus, this appeal is effective only as it relates to the Town’s
closure of Avenue A, not the relevant portion of South Avenue.
                                    -3-
not occur if the Board determined that it was not in the Town’s

best interests. On 3 July 2012, the Board voted to close Avenue

A. The Board declined to vacate the South Avenue terminus at

that time.

       Plaintiff is a “taxpaying resident[] of the Town” and owns

property approximately three blocks North of Avenue A and the

South   Avenue     terminus.   Plaintiff’s    property   does   not   touch

Avenue A, South Avenue, or the Raccoon Creek property. On 2

August 2012, Plaintiff appealed the Board’s decision to close

Avenue A and sought a declaratory judgment regarding the Town’s

authority to close either Avenue A or the South Avenue terminus.

Plaintiff filed an amendment to that action on 4 September 2012,

seeking to add the Board as a party to the action and seeking

“injunctive and/or declaratory relief” for a number of alleged

open    meetings     and   public   records     violations.     Defendants

responded with an answer and affirmative defenses on 2 October

2012. Four months later, on 11 February 2013, Defendants filed

motions to dismiss Plaintiff’s “appeal, action for declaratory

judgment, and amendment,” or, in the alternative, for judgment

on the pleadings.

       A hearing on the motions was held on 4 March 2013. During

the hearing, Defendants argued that Plaintiff lacked standing to
                                    -4-
bring his suit. Afterward, on 10 April 2013, the trial court

entered    orders   dismissing    Plaintiff’s       appeal   of     the   Board’s

decision to close Avenue A and granting Defendants’ motions to

dismiss     the   declaratory    action      and     for   judgment       on     the

pleadings.2 Plaintiff appeals to this Court from those orders.

                                 Discussion

     On appeal, Plaintiff argues that he (1) stated grounds to

support    a   declaratory   judgment     in       his   action,    (2)    had     a

statutory right to appeal the Town’s decision to vacate Avenue

A, and (3) had a right to have his open meetings and public

records claims heard. In response, Defendants argue that the

trial     court   properly   dismissed       Plaintiff’s      action      because

Plaintiff lacked standing to file suit and failed to state a

claim upon which relief could be granted. We affirm the trial

court’s orders.

     I. Plaintiff’s Reply Brief

     As    a   preliminary   matter,    we     address     the     propriety      of

Plaintiff’s reply brief, filed 20 March 2014. On 3 April 2014,



2
  The Town closed the South Avenue terminus on 8 July 2013. As a
result, Plaintiff filed a second lawsuit against the Town and
the Board, appealing the closure of the South Avenue terminus.
That suit has not been appealed to this Court. Rather, the trial
court stayed the proceedings on that action until this appeal
could be resolved.
                                             -5-
Defendants moved this Court for leave to file a surreply brief

or,    in   the        alternative,    for       oral       argument,     contending         that

Plaintiff’s reply brief was improper. A proposed surreply brief

was    attached.         Plaintiff     filed      a     response     on     8    April      2014,

objecting         to     the   motion.      On        16    April    2014,       we     granted

Defendants’ motion for leave to file a surreply brief, accepting

the proposed surreply brief for that purpose, and denied the

motion      for    oral    argument.     No      additional         documents        have    been

filed with this Court.

       Plaintiff         asserts     that      his         reply    brief       is    submitted

pursuant to Rule 28(h) and “limited to a concise rebuttal of the

arguments . . . contained in [Defendants’ b]rief.” In his reply

brief, Plaintiff seeks to rebut Defendants’ contentions that he

(1) lacked standing to file suit and (2) failed to state a claim

upon    which      relief      could   be     granted.         Given    the      contents     of

Plaintiff’s principal brief, this discussion violates Rule 28(h)

of the North Carolina Rules of Appellate Procedure.

       Rule 28(h) states, in pertinent part, that:

              . . . Any reply brief which an appellant
              elects to file shall be limited to a concise
              rebuttal of arguments set out in the
              appellee’s brief and shall not reiterate
              arguments set forth in the appellant’s
              principal brief. . . .
                                         -6-
N.C.R. App. P. 28(h) (emphasis added). In his principal brief,

Plaintiff argues that he stated a claim for which relief could

be   granted    under    Rule    12(b)(6).     He    also   argues    that   he   had

standing to appeal the Town’s decision as a “person aggrieved”

under N.C. Gen. Stat. § 160A-299 and as a successor in interest

to “these public rights of way.” Plaintiff’s standing argument

is   less    detailed     than    his    12(b)(6)      argument,      but    clearly

supported by authority and reason nonetheless.

      As we have previously noted, “[a] reply brief does not

serve as a way to correct deficiencies in the principal brief.”

State   v.     Greene,    __    N.C.    App.   __,    753    S.E.2d    397    (2013)

(unpublished opinion), available at 2013 WL 5947337 (striking

the defendant’s reply brief under amended Rule 28(h) because he

“merely      expand[ed]    upon    the     alleged      error   raised       in   his

principal brief”).3 Plaintiff addressed Rule 12(b)(6) and the

standing issue in his principal brief. In addition, standing was

raised numerous times by Defendants’ counsel during the 4 March

2013 hearing on Defendants’ motions to dismiss. If Plaintiff

wished to address these issues in greater detail, he should have

3
   Greene is an unpublished opinion and, therefore, lacks
precedential value. N.C.R. App. P. 30(e)(1). Nonetheless, its
discussion is well-reasoned and one of the only opinions to
address Rule 28(h) as amended (effective 15 April 2013). We find
it persuasive.
                                       -7-
done   so   in   his     principal   brief.   Accordingly,       we   decline   to

consider Plaintiff’s reply brief and, thus, have no reason to

consider Defendants’ surreply brief.

       II. Standing

       Defendants contend that the trial court properly dismissed

Plaintiff’s appeal and action for declaratory judgment because

Plaintiff      lacked     standing   to    bring   those    actions.      Because

standing is jurisdictional, we address Defendants’ argument as a

threshold matter. See, e.g., In re Miller, 162 N.C. App. 355,

357, 590 S.E.2d 864, 865 (2004) (“Standing is jurisdictional in

nature and consequently, standing is a threshold issue that must

be addressed, and found to exist, before the merits of the case

are judicially resolved.”) (citations, internal quotation marks,

and brackets omitted). After a thorough review of the record, we

conclude    that   the     trial   court   properly   dismissed       Plaintiff’s

actions for lack of standing.

       Section 160A-299 provides in pertinent part that:

            (b) Any person aggrieved by the closing of
            any street or alley . . . may appeal the
            . . . order to the General Court of Justice
            within 30 days after its adoption. . . .

N.C.    Gen.     Stat.    §   160A-299(b)     (2013).      The    term   “person

aggrieved” as it applies to section 160A-299 is not defined in

the statute or by our courts. See id. Nonetheless, this Court
                                        -8-
has defined an “aggrieved party” under section 160A and in the

context of a zoning ordinance as “one who can either show an

interest in the property affected, or if the party is a nearby

property owner, some special damage, distinct from the rest of

the community, amounting to a reduction in the value of his

property.” In re Granting of Variance by Town of Franklin, 131

N.C.   App.   846,   849,    508   S.E.2d     841,   843    (1998)     (citation

omitted)   (noting   that    the   petitioner,       an    adjoining   property

owner, “clearly established” that she was an aggrieved party

when the town granted a variance from the setback requirements

to a group called “Carriage Park Villas”). We believe the same

definition is applicable here. See generally In re Hayes, 199

N.C. App. 69, 78–79, 681 S.E.2d 395, 401 (2009) (“The primary

rule of [statutory] construction is to ascertain the intent of

the legislature and to carry out such intention to the fullest

extent. To effectuate that intent, statutes dealing with the

same   subject   matter     must   be    construed    in    pari   materia   and

harmonized, if possible, to give effect to each.”) (citations,

internal quotation marks, elipses, and brackets omitted), disc.

review denied, 363 N.C. 803, 690 S.E.2d 694 (2010).

       In his appeal from the Town’s decision and action for a

declaratory judgment, Plaintiff alleged that he “is a member of
                                         -9-
the public[] and a taxpaying resident[] of the Town . . . .” He

also stated that he owns property in “Block No. 13,” which is

approximately three blocks away from Avenue A, and asserted that

he   “is   aggrieved”    by   the    Town’s    decision.       Lastly,   Plaintiff

alleged that he is a “successor in interest to the dominant

tract owner and offeror of dedication to public uses for use as

rights of way all such land as is depicted as rights-of-way on

the 1900 Town Map, including any subsequent modifications of

such   rights     of   ways[.]”     On   appeal   to    this   Court,    Plaintiff

argues that he is an aggrieved person due to his status as a

“citizen    and    resident    of    the    Town”      and   “because    he   is   a

successor in interest to these public rights of way, which were

designed and dedicated to provide access to the citizens of [the

Town] to the public trust waters of the Neuse River, when the

Town . . . was laid out [in the year 1900].”4 We are unpersuaded.




4
  Plaintiff asserts that these allegations “must be accepted by
this [C]ourt as being true” under the standard of review applied
on appeal from the grant of a motion to dismiss under Rule
12(b)(6). This is incorrect. As Defendants note in their brief,
that standard is only applicable to allegations of fact, not
law. Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, 851
(1979) (“For the purpose of the motion [to dismiss under Rule
12(b)(6)],   the  well-pleaded   material   allegations of   the
complaint are taken as admitted; but conclusions of law or
unwarranted deductions of fact are not admitted.”).
                                             -10-
    Plaintiff      has       provided    no     factual    basis       to       support    the

argument   that    he    is    an   aggrieved         person     in    this      case.     His

property is not adjacent to Avenue A or South Avenue and was not

adjacent to those roads when the Town was designed in 1900. He

has not alleged any personal injury and provides no reason to

believe    that        his    turn-of-the-last-century                 predecessor          in

interest had some special connection to Avenue A or South Avenue

distinct from the rest of the community. Rather, he couches his

arguments in terms of broad, public rights flowing from the

Town’s inception that have no bearing on our analysis here.

Indeed, Plaintiff’s entire argument is rooted in his status as a

member of the Town’s taxpaying populace. Such status is patently

insufficient      to     support        an     appeal     from,        or       action     for

declaratory judgment regarding, a town’s order closing a street

or alley under section 160A-299. See, e.g., Shaw v. Liggett &

Myers Tobacco Co., 226 N.C. 477, 477–78, 38 S.E.2d 313, 313

(1946)    (stating,      before     section         160A-299     was    enacted,          that

“[t]he action of a city or town in authorizing the closing of a

street[]   cannot       be    successfully          challenged    in        a   civil     suit

instituted by a private citizen whose only interest therein is

that of a general taxpayer of the city or town”). Accordingly,

we hold that Plaintiff lacked standing to contest the Town’s
                                   -11-
decision   and   affirm   the   trial   court’s   orders   dismissing   his

appeal, action, and amended action.

    AFFIRMED.

    Judges GEER and ERVIN concur.
