Reese v. Charlotte-Mecklenburg Bd. of Educ.

676 S.E.2d 481

Jerry Alan REESE, Plaintiff, v. The CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and County of Mecklenburg, North Carolina, Defendants.

No. COA08-397.

Court of Appeals of North Carolina.

May 5, 2009.

Appeal by plaintiff from judgment entered 12 October 2007 by Judge Lindsay R. Davis, Jr., in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 September 2008.

Jerry Alan Reese, pro se.

Womble Carlyle Sandridge & Rice, PLLC, by James P. Cooney III, and G. Michael Barnhill, Charlotte, for defendant Mecklenburg County.

Helms Mulliss & Wicker, PLLC, by James G. Middlebrooks and J. Trevor Johnston, Charlotte, for defendant Charlotte-Mecklenburg Board of Education.

STEELMAN, Judge.

Where plaintiff's complaint made clear references to the events memorialized in a Resolution, the trial court did not err in considering the document in deciding defendants' Rule 12(c) motion to dismiss, even though the document itself was not specifically referenced in the complaint. The transactions encompassed by an Interlocal Cooperation Agreement between the Charlotte-Mecklenburg Board of Education and Mecklenburg County were authorized by the General Statutes and Local Acts of the North Carolina General Assembly. Plaintiff's constitutional claims were based upon a unilateral expectation of a property interest and were properly dismissed. The trial court did not abuse its discretion in denying plaintiff's motion to strike.

I. Factual and Procedural Background

In January 2007, Mecklenburg County (County) entered into a Memorandum of Understanding with Cornerstone Real Estate Advisors, Inc. (Cornerstone) pertaining to the development and construction of Brooklyn Village, a mixed-use development to be located in Second Ward of the City of Charlotte. The Memorandum recited that County "owns or is in the process of acquiring 493,971 square feet of land located in Second Ward bounded by South McDowell Street, Third Street, Second Street and the First Baptist Church property...." County agreed to swap a portion of this property for property owned by Cornerstone's parent company, with the balance of the land being retained by County for development as an urban park. The 493,971 square feet of property consists of two parcels: (1) a 5.91 acre parcel owned by the Charlotte-Mecklenburg Board of Education (Board), upon which its administrative offices are currently located; and (2) Marshall Park.

At its 1 May 2007 public meeting, the Mecklenburg County Board of Commissioners approved a resolution authorizing the execution of the Brooklyn Village Interlocal Cooperation Agreement with the Board. On or about 8 May 2007, the Board, by majority vote, approved the execution of the Brooklyn Village Interlocal Cooperation Agreement. This agreement referenced a 2002 Master Plan which was adopted by County, Board, and the City of Charlotte. It also referenced the Memorandum of Understanding between County and Cornerstone. It further recited:

WHEREAS, pursuant to G.S. 115C-518, the Board of Education desires to convey tax parcel # 12507120 as shown on the map attached hereto as Attachment B (referred to as "BOE Office Building Site") to the County in exchange for more suitable replacement office space which (i) has a fair market value equal to or greater than the fair market value [of] the BOE Office Building Site which has been determined by appraisal to be $14,900,000 and (ii) provides equivalent or better utility to Charlotte-Mecklenburg Schools staff[.]

Under the terms of the Interlocal Agreement, Board agreed to convey to County its Office Building site. In exchange, County was to make available to Board $13,750,000.00 to develop additional replacement space, plus the use of one floor in the Government Center for twenty years. The agreement stated that the value of what was received by Board was not less than the fair market value of the Office Building site. It was acknowledged that the Board property was "needed for an exchange with Cornerstone Real Estate Advisors which will allow the County to obtain a site in Third Ward ... to be used as the site for a new County park and allow Cornerstone Real Estate Advisors and Spectrum Investment Services to develop Brooklyn Village." This agreement was executed by Board on 4 June 2007.

On 15 January 2007, plaintiff, writing on behalf of Brooklyn Renaissance, L.L.C., wrote to Dr. Peter C. Gorman, Superintendent of the Charlotte-Mecklenburg County Schools. In this letter, plaintiff expressed his opposition to the proposed interlocal agreement where Board's Office Property would be transferred to County. The letter acknowledged that the transaction had been reported to the County Commission at its 19 December meeting. It further demanded that other parties be given an opportunity to submit a proposal for acquisition of Board's Office Property and threatened to spend "3-5 years in litigation with CMS" if Board proceeded with the Interlocal Agreement. The letter closed with an offer to discuss plaintiff's plans for the Brooklyn Renaissance Project and how the Charlotte-Mecklenburg School properties would fit into these plans.

Plaintiff commenced this action (Mecklenburg County case 07 CVS 9456) by filing a summons and a notice of lis pendens on the Board of Education property on 11 May 2007. Plaintiff's complaint was filed on 31 May 2007 and asserted seven claims for relief as follows: (1) for a declaratory judgment that the proposed conveyance of Board's property was unlawful under the provisions of N.C. Gen.Stat. § 115C-518; (2) for a declaratory judgment that the proposed conveyance of Board's property was unlawful under the provisions of N.C. Gen.Stat. § 115C-518; (3) for a declaratory judgment that the proposed method of disposition of Board's property was unlawful under the provisions of N.C. Gen.Stat. § 160A-266; (4) for a declaratory judgment that Board abused its discretion in the proposed disposition of its property; (5) for a declaratory judgment that County's acquisition of Board's property was unlawful under the provisions of N.C. Gen.Stat. § 153A-158; (6) for a declaratory judgment that the actions of Board and County violated plaintiff's rights to due process and equal protection; and (7) for a preliminary and permanent injunction prohibiting Board from transferring the property to County.

On 4 June 2007, plaintiff filed a second complaint in Mecklenburg County Superior Court (case 07 CVS 9577) seeking to block County's acquisition of property from the City of Charlotte for part of the Brooklyn Village project. Plaintiff also filed a notice of lis pendens on the property of the City of Charlotte. On 11 July 2007, the Chief Justice designated both cases as "exceptional" cases pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts (2007).

Defendants filed answers to plaintiff's complaint, denying the material allegations contained therein, and attached to their answers a number of exhibits, which included documents referenced in plaintiff's complaint. On 3 August 2007, defendants in both lawsuits filed motions to strike plaintiff's notice of lis pendens, and for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. On 17 September 2007, plaintiff filed a motion to strike a portion of County's answer pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure.

On 12 October 2007, the trial court filed an order encompassing both lawsuits that granted defendants' motions for judgment on the pleadings, dismissing both of plaintiff's actions. Defendants' motions to cancel the notices of lis pendens were also granted, and plaintiff's motion to strike was denied.

Plaintiff appeals.

II. Consideration of Document not Referenced in Plaintiff's Complaint

In his first argument, plaintiff contends that the trial court erred in considering one of the exhibits attached to Board's answer. We disagree.

Board and County attached to their answers copies of certain documents. Plaintiff acknowledges that all but one of the documents were referred to in his complaint and were thus properly considered by the trial court. However, he contends that the written resolution entitled "Resolution Ratifying Execution Of The Brooklyn Village Interlocal Cooperation Agreement With The County Of Mecklenburg, North Carolina" (Resolution) (Exhibit B to Board's answer) was not referenced in the complaint and should not have been considered by the trial court. The Board approved the Brooklyn Village Interlocal Agreement (Exhibit A to Board's answer) at its 8 May 2007 meeting and authorized its chairman to execute the agreement. Plaintiff filed a summons on 11 May 2007 and his complaint on 31 May 2007. The Interlocal Agreement was signed on 4 June 2007, and the Resolution was signed on 26 June 2007.

Plaintiff argues that the Resolution was signed after he filed his complaint and could not possibly be referenced in his complaint. He further argues that by considering matters outside of the pleadings, the trial court converted defendants' Rule 12(c) motion into a Rule 56 motion for summary judgment, and he was entitled to respond to the motion and conduct discovery before the motion to dismiss was heard.

We review the trial court's granting of a Rule 12(c) motion de novo. Carpenter v. Carpenter, 189 N.C.App. 755, 756, 659 S.E.2d 762, 764 (2008). A "document attached to the moving party's pleading may not be considered in connection with a Rule 12(c) motion unless the non-moving party has made admissions regarding the document." Weaver v. Saint Joseph of the Pines, Inc., 187 N.C.App. 198, 205, 652 S.E.2d 701, 708 (2007).

Plaintiff's complaint contains the following allegations relevant to the Resolution:

16. Upon information and belief, on May 1, 2007, the Mecklenburg County Board of County Commissioners approved a resolution authorizing the Chairman of the Board to execute a "Land Swap Interlocal...