Opinion
NO. COA12-847
01-15-2013
JIM ANDREWS, ROXIAN ANDREWS, TRACY BAKER, CLAY BAKER, SONDRA BRADFORD, ROB BRADFORD, CHRISTOPHER CHIN, EMILY SNAPP, JOSEPH CONIGLIO, SYDELL CONIGLIO, DANIEL EFENECY, CAROL EFENECY, MIKE FAILOR, KATHY FAILOR, JOHN FAMOLARI, BONNIE FAMOLARI, ROYCE HARMON, MELINDA HARMON, ANGELA HOSKING, JEFFREY SCOTT HOSKING, MIKE LINCOLN, WENDI LINCOLN, GREG MILLER, KIM MILLER, CANDICE NORTHUP, MIKE PATTERSON, KATHY PATTERSON, KATIE PATTERSON, DIXIE PATTERSON, WINSTON D. PATTERSON, POPLAR RIDGE FARM, MARK SKINNER, HOLLY SKINNER, JAMES STITT, SUSAN STITT, PATRICIA STITT, DANA WILSON, and HAL WILSON, individually, Plaintiffs, v. MICHAEL ROY LAND, Defendant.
The Law Offices of Walsh and deMontesquiou, by Paul A. deMontesquiou, for plaintiffs-appellants. Robinson Elliott & Smith, by William C. Robinson and W. Lewis Smith, Jr., and The Helms Law Firm, PLLC, by Tate Helms, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Union County
No. 11 CVS 2887
Appeal by plaintiffs from order entered 5 March 2012 by Judge Mark E. Klass in Union County Superior Court. Heard in the Court of Appeals 10 December 2012.
The Law Offices of Walsh and deMontesquiou, by Paul A. deMontesquiou, for plaintiffs-appellants.
Robinson Elliott & Smith, by William C. Robinson and W. Lewis Smith, Jr., and The Helms Law Firm, PLLC, by Tate Helms, for defendant-appellant.
, Chief Judge.
Plaintiffs appeal from the trial court's order granting defendant's motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) their complaint for declaratory relief. For the following reasons, we affirm the trial court's order.
Defendant, Dr. Michael Land, has been using his property in Union County as a private "open air" shooting range since 1991. The Village of Wesley Chapel was incorporated in 1998 and annexed defendant's land into the Village in 1999. Since 1995, defendant has been shooting automatic weapons on his property at a mound of dirt reinforced with wooden timbers on a weekly and often daily basis. The Village unsuccessfully attempted to prevent defendant from using his property as a shooting range in a previous action, Land v. Village of Wesley Chapel, 206 N.C. App. 123, 697 S.E.2d 458 (2010), alleging violations of municipal and county land ordinances.
Plaintiffs, who live in the vicinity of defendant's property, filed suit on 16 September 2011 seeking declaratory relief to "settle the rights of the parties under certain North Carolina General Statutes and a local ordinance" in addition to "equitable relief under the declared rights" based upon theories of negligence per se, nuisance, conversion of real property, intentional infliction of emotional distress, and assault. Plaintiffs contend defendant's actions disrupt their lives and cause them to fear for their safety and to suffer from anxiety and sleep disorders. They also allege that the property values of their homes have been diminished by defendant's actions.
After the hearing on the motion to dismiss was held on 6 February 2012, the trial court filed an order granting defendant's motion to dismiss with prejudice on 5 March 2012. Plaintiffs appeal.
On appeal, plaintiffs contend the trial court erred by (I) dismissing plaintiffs' request for declaratory relief in the second, third, and fourth claims contained in the complaint; (II) granting defendant's 12(b)(6) motion to dismiss with prejudice with regard to all of plaintiffs' claims; and (III) not allowing plaintiffs to amend their complaint.
"In ruling on [a 12(b)(6) motion to dismiss,] the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted." Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979). In doing so, this Court reviews the pleadings de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). Dismissal is proper under Rule 12(b)(6) when "(1) the complaint on its face reveals that no law supports the claim; (2) the complaint on its face reveals the absence of facts sufficient to make a valid claim; or (3) the complaint discloses some fact that necessarily defeats the claim." Elliott v. Elliott, 200 N.C. App. 259, 264, 683 S.E.2d 405, 409 (2009) (citations and internal quotation marks omitted).
I.
Plaintiffs contend the trial court erred by dismissing their request for declaratory relief with regard to the second, third, and fourth claims, denominated "causes of action," in their complaint. In their "Second Cause of Action for Declaratory Relief," plaintiffs seek a declaration that defendant is not qualified for legal ownership of "machine guns, weapons of mass death and destruction" under N.C.G.S. § 14-409 simply because he is a "licensed collector of curios and relics," and seek to enjoin defendant from owning or using such weapons.
Under N.C.G.S. § 14-409 "it shall be unlawful for any person, firm or corporation to . . . use or possess machine guns, submachine guns, or other like weapons . . . ." N.C. Gen. Stat. § 14-409(b) (2011). Subsection (b), amended in 2011, however, lists several categories of persons to whom the statute does not apply. An exception exists for
a person who lawfully possesses or owns a weapon as defined by Subsection (a) of this section in compliance with 26 U.S.C. Chapter 53, §§ 5801-5871. Nothing in this subdivision shall limit the discretion of the sheriff in executing the paperwork required by the United States Bureau of Alcohol, Tobacco and Firearms for such person to obtain the weapon.Id. Any person who violates a provision of § 14-409 is guilty of a Class I felony. N.C. Gen. Stat. § 14-409(c). N.C.G.S § 14-409 is found in Chapter 14 of North Carolina's General Statutes, the Chapter delineating North Carolina's criminal law. Although the title and context of the statute is not controlling in determining whether a statute is criminal in nature, Petty v. Owen, 140 N.C. App. 494, 500, 537 S.E.2d 216, 219-20 (2000), disc. review denied, 353 N.C. 379, 547 S.E.2d 16 (2001), when a legislative intent to impose punishment is clear from the text, that ends the inquiry. State v. Hunt, __ N.C. App. __, __, 727 S.E.2d 584, 589, appeal dismissed and disc. review denied, __ N.C. __, 732 S.E.2d 581 (2012); State v. White, 162 N.C. App. 183, 192, 590 S.E.2d 448, 454 (2004). Thus, § 14-409 is a criminal statute.
"The established general rule is that there is no equitable jurisdiction to enjoin the commission of a crime." N.C. Bd. of Pharmacy v. Lane, 248 N.C. 134, 142, 102 S.E.2d 832, 839 (1958). Declaratory relief in the form of an injunction is "confined to cases where some private right is a subject of controversy. Individuals who apprehend injury to their person or property by reason of any acts which are criminal are furnished an adequate remedy at law by having the perpetrator of such acts indicted and prosecuted by the State." Matthews v. Lawrence, 212 N.C. 537, 538, 193 S.E. 730, 731 (1937). Accordingly, the trial court did not err in dismissing plaintiffs' request for a declaration establishing that defendant is in violation of a criminal statute, because even if defendant is in violation of § 14-409, no law supports plaintiffs' ability to bring this claim.
In their "Third Cause of Action for Declaratory Relief," plaintiffs seek a "declaration of rights and liabilities of the parties with regard to the Sport Shooting Range Protection Act of 1997 ('SSRPA')." Plaintiffs contend the SSRPA does not allow defendant to shoot automatic weapons on his property.
The Sport Shooting Range Protection Act of 1997 states that,
[n]otwithstanding any other provision of law, a person who owns, operates, or uses a sport shooting range in this State shall not be subject to civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from the operation or use of the range if the range was in existence at least three years prior to the effective date of this Article and the range was in compliance with any noise control laws or ordinances that applied to the range and its operation at the time the range began operation.N.C. Gen. Stat. § 14-409.46(a) (2011) (emphasis added). The SSRPA also specifically protects owners, operators, and users of sport shooting ranges from nuisance claims unless there is a substantial change in the use of the range after a plaintiff acquires title to property adversely affected by the operation of the shooting range. N.C. Gen. Stat. § 14-409.46(b) and (d). In that scenario, the plaintiff "may maintain a nuisance action if the action is brought within one year of the date of a substantial change in use." N.C. Gen. Stat. § 14-409.46(d). The statute, however, notes that it does not protect range owners, operators, and users from "actions for negligence or recklessness in the operation of the range or by a person using the range." Id. Therefore, the statute essentially creates an affirmative defense; it does not create a claim for declaratory relief. Because plaintiffs' "Third Cause of Action" is not a recognized claim, but merely a request that this Court preemptively determine that an affirmative defense does not apply to defendant, the trial court did not err in dismissing this claim. See Augur v. Augur, 356 N.C. 582, 589, 573 S.E.2d 125, 131 (2002) ("[C]ourts will not entertain or proceed with a cause merely to determine abstract propositions of law.") (citations and internal quotation marks omitted). Thus, this argument is overruled.
Plaintiffs' "Fourth Cause of Action for Declaratory Relief" seeks a declaration of the "rights and liabilities of the parties with regard to the Village of Wesley Chapel Firearms Safety Ordinance ('VWC Ordinance')." Specifically, plaintiffs seek to enforce the ordinance and obtain a mandatory permanent injunction against defendant. Plaintiffs contend that the VWC Ordinance prohibits defendant from shooting automatic weapons on his property and the SSRPA does not protect his ability to do so.
The VWC Ordinance makes it "unlawful for any person to discharge a firearm within the municipal limits of the Village of Wesley Chapel." Village Of Wesley Chapel, N.C., Ordinance 2008-09, § 2. Under § 9(B), the ordinance may be enforced by "any appropriate equitable action" brought by "any person or entity owning any of the types of places or structures described in Section 3(D) of this Ordinance which are located within the specified distances listed in Section 3(D) of the point of fire of an activity which violates the provisions of this Ordinance." Ord. 2008-09, § 9(B). Section 3(D) includes persons owning a dwelling house within 1,000 feet of the point of fire. Ord. 2008-09, § 3(D)(a).
Here, plaintiffs have failed to sufficiently allege standing to enforce the VWC Ordinance. Although plaintiffs' complaint specifies the exact location of defendant's property, it merely makes passing reference to the fact that plaintiffs are "neighbors," "adjoining neighbors," or "adjacent homeowners." Plaintiffs do not specify how far their properties are from defendant's point of fire. Thus, the complaint on its face reveals the absence of facts sufficient to make a claim under the Ordinance. Accordingly, we find that the trial court did not err in dismissing this claim.
II.
Plaintiffs next contend the trial court erred in granting defendant's 12(b)(6) motion to dismiss the entire action with prejudice. After careful consideration of their arguments, we conclude that the trial court's order was correct.
A.
Plaintiffs first argue that defendant's alleged violation of N.C.G.S. § 14-409 subjects him to liability under a theory of negligence per se. To prevail on a claim of negligence per se under North Carolina law, a
plaintiff must show, (1) a duty created by a statute or ordinance; (2) that the statute or ordinance was enacted to protect a class of persons which includes the plaintiff; (3) a breach of the statutory duty; (4) that the injury sustained was suffered by an interest which the statute protected; (5) that the injury was of the nature contemplated in the statute; and (6) that the violation of the statute proximately caused the injury.Hardin v. York Mem'l Park, __ N.C. App. __, __, 730 S.E.2d 768, 776 (2012). A public safety statute imposes a duty on a person for the protection of others, giving rise to the general rule in North Carolina that the violation of a public safety statute constitutes negligence per se. Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 326, 626 S.E.2d 263, 266, reh'g denied, 360 N.C. 546, 635 S.E.2d 58 (2006). "However, not every statute purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violation." Walden v. Morgan, 179 N.C. App. 673, 680, 635 S.E.2d 616, 622 (2006) (citations and internal quotation marks omitted).
Even if the statute at issue here, N.C.G.S. § 14-409, could be classified as a public safety statute, as discussed in Section I above, an action based on negligence per se would fail because the plaintiffs do not fall in the class of individuals protected by the statute. The statute is aimed at limiting access to these weapons to only those persons authorized by the statute to possess them, not at protecting citizens from noise. Therefore, the trial court did not err by dismissing the claim for negligence per se.
B.
Plaintiffs also allege the trial court erred in dismissing their claim for nuisance. Plaintiffs' complaint is unclear as to whether it alleges public or private nuisance; however, because no plaintiff has alleged facts sufficient to establish individual standing to bring a public nuisance claim in the complaint and because the plaintiffs assert private nuisance in their appellate brief, we will evaluate the claim as one for private nuisance. See Barrier v. Troutman, 231 N.C. 47, 49, 55 S.E.2d 923, 925 (1949) (holding that private individuals must make a " showing of unusual and special damage, differing from that suffered by the general public" to bring a public nuisance action).
To recover for private nuisance, plaintiffs must show an unreasonable interference with the use and enjoyment of their property. Kent v. Humphries, 303 N.C. 675, 677, 281 S.E.2d 43, 45 (1981). "Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated." Morgan v. High Penn Oil Co., 238 N.C. 185, 191, 77 S.E.2d 682, 691 (1953). Mere noise may amount to actionable nuisance at "certain times and under certain circumstances" if it is "unreasonable in degree." Hooks v. Int'l Speedways, Inc., 263 N.C. 686, 691, 140 S.E.2d 387, 391-92 (1965). Thus, in order to make out a prima facie case of intentional private nuisance per accidens, a plaintiff "must show (1) that defendant's maintenance and operation of the enterprise is unreasonable and (2) that because of the unreasonable conduct there has been substantial injury and loss of value to plaintiff's property." Twitty v. State, 85 N.C. App 42, 50, 354 S.E.2d 296, 302, disc. review denied, 320 N.C. 177, 358 S.E.2d 69 (1987).
Here, plaintiffs have failed to show that defendant made an unreasonable use of his property. Plaintiffs merely allege that defendant's guns produce sound at 153 decibels from three feet away. However, as noted above, plaintiffs do not specify how many feet their respective residences are from defendant's shooting range. Furthermore, plaintiffs fail to specify the timing and frequency of the sound, making it unclear how pervasive the noise is. Therefore, there are not sufficient facts alleged to sustain this cause of action.
Furthermore, the face of the complaint appears to disclose facts which defeat plaintiffs' claims under both the SSRPA and N.C.G.S. § 14-409. First, the complaint seems to support a determination that the SSRPA would preclude the maintenance of this nuisance action. Plaintiffs allege in their complaint that defendant's range was opened in 1991, a date which antedated the enactment of the SSRPA by more than three years. See N.C. Gen. Stat. § 14-409.46(b). Even if defendant's use of automatic weapons beginning in 1995 would qualify as a "substantial change in use," plaintiffs failed to bring suit within one year of the change in use. N.C. Gen. Stat. § 14-409.46(d). Plaintiffs also admit in their complaint that defendant has a Federal ATF "Form 4" authorization of transfer of ownership, a Curio and Relic License, and a Letter of Authorization from the Sheriff of Union County. Therefore, it appears the defendant would fall under the exception in § 14-409(b) and be lawfully entitled to own automatic weapons. Thus, because the complaint appears to disclose facts that necessarily defeat plaintiffs' claim, see Elliott, 200 N.C. App. at 264, 683 S.E.2d at 409, the trial court did not err by dismissing plaintiffs' nuisance claim.
C.
Plaintiffs also sought to allege claims for conversion of real property value, involuntary taking of property, and "interference of monetary value of property" in their complaint. However, "[i]n North Carolina, only goods and personal property are properly the subjects of a claim for conversion. A claim for conversion does not apply to real property." Norman v. Nash Johnson & Sons' Farms, Inc., 140 N.C. App. 390, 414, 537 S.E.2d 248, 264 (2000), disc. reviews denied, 353 N.C. 378, 547 S.E.2d 13-14 (2001). Thus, a conversion claim is improper in this instance. Moreover, plaintiffs have failed to allege any legal authority or facts sufficient to support their claims of interfering with the monetary value of the property or a taking of their property. Thus, the trial court did not err by dismissing these claims.
D.
Plaintiffs next contend that the trial court erred by dismissing their claim for intentional infliction of emotional distress. Plaintiffs allege that the shots fired on defendant's property cause plaintiffs to suffer from "neurological/vasomotor human responses" such as high blood pressure and sweating.
Intentional infliction of emotional distress requires "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress" to another. Holleman v. Aiken, 193 N.C. App. 484, 501, 668 S.E.2d 579, 590 (2008) (citations and internal quotation marks omitted). To be considered "extreme" and "outrageous," this Court has held that the conduct in question must "go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Wells v. N.C. Dep't of Corr., 152 N.C. App. 307, 322, 567 S.E.2d 803, 814 (2002). "[T]he term 'severe emotional distress' means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990).
Here, although plaintiffs allege that defendant acted "intentionally and willfully," plaintiffs failed to allege in their complaint that defendant's conduct was "extreme" or "outrageous"; rather, they merely argue that they suffered "physiological and psychological emotional distress." Even if plaintiffs had made sufficient allegations regarding each of the elements of intentional infliction of emotional distress, defendant's conduct cannot be said to be extreme and outrageous, as firearm possession, target shooting, and hunting are legislatively protected in our state. Therefore, the trial court did not err by dismissing plaintiffs' claim for intentional infliction of emotional distress.
E.
Plaintiffs also sought to allege a claim for assault. In support thereof, plaintiffs argue that defendant's intentional and willful shooting of automatic weapons on his range has placed plaintiffs "in reasonable apprehension for their immediate safety and the infliction of an immediate battery."
"An assault is an offer to show violence to another without striking him." Dickens v. Puryear, 302 N.C. 437, 444, 276 S.E.2d 325, 330 (1981). Assault requires intent by the defendant to offer an imminent threat of injury, the apparent ability to inflict injury, and reasonable apprehension by the plaintiff. See Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992). "[T]he apprehension created must be one of imminent contact, as distinguished from any contact in the future. Imminent does not mean immediate, in the sense of instantaneous contact . . . it means rather that there will be no significant delay." Johnson v. Bollinger, 86 N.C. App. 1, 5, 356 S.E.2d 378, 381 (1987) (citations and internal quotation marks omitted).
Here, plaintiffs have failed to cite any legal authority for the proposition that noise alone can be the basis for civil assault liability, nor have they alleged sufficient facts to demonstrate that their apprehension of imminent contact was reasonable. Consequently, the trial court did not err by dismissing plaintiffs' claim for civil assault.
III.
Finally, plaintiffs contend the trial court erred by not allowing them to amend their complaint. Generally, "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . ." N.C. Gen. Stat. § 1A-1, Rule 15(a). However, once an answer has been served, plaintiffs must seek leave of court to amend their complaint, and "leave shall be freely given when justice so requires." Id.
Here, plaintiffs made no written motion to amend their complaint; rather, at the hearing on defendant's motion to dismiss, plaintiffs' counsel stated,
I said in my papers to you, [if] for some reason you think maybe one of my cause of action [sic] could be beefed up a little bit, this is our first time here; let me go back and amend if you think for any reason I need to beef up some of the facts.Later, counsel repeated, "If you feel for any reason I'm a little light on some of the pleadings of some of the separate cause of action, please, I beg the Court allow me to amend." The trial court did not respond. In Hunter v. Guardian Life Insurance Co. of America, 162 N.C. App. 477, 486, 593 S.E.2d 595, 602, disc. reviews denied, 358 N.C. 543, 599 S.E.2d 48-49 (2004), this Court found that plaintiffs' oral statement that they "would be willing to amend the petition and get more facts" at the Rule 12(b)(6) hearing was not a sufficient request for leave to amend. Therefore, no sufficient request for leave to amend having been made in this case, the trial court did not err by not allowing plaintiffs to amend their complaint.
Affirmed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).