Harrell v. City of Winston-Salem

HEDRICK, Judge. While the summary judgment appealed from appears to apply to both cases filed by plaintiffs, it obviously does not apply to the case filed 20 June 1973, since that case was dismissed by the order of the Superior Court dated 11 July 1973; and the plaintiffs did not except to or appeal from that order, nor did the plaintiffs except to or appeal from the order vacating the writ of certiorari and the restraining order. Furthermore, when these cases were argued in the Court of Appeals, plaintiffs’ counsel, in response to a question by the court, stated that the plaintiffs had abandoned their alleged claim for damages set out in Count II of their complaints. Our review on this appeal, therefore, is limited to the question of whether summary judgment for defendants was proper with respect to plaintiffs’ claim for damages as set out in Count I of the complaint filed on 5 March 1973. The following pertinent allegations appear in Count I of the complaint filed on 5 March 1973: “5. From time to time defendant, purportedly acting under its housing code, has caused orders to issue whereby plaintiffs were required to demolish certain frame dwellings owned by them on portions of the property described below, all owned by plaintiffs: (a) 1026 North Trade Street (b) 1030 North Trade Street (c) 1036 North Trade Street (d) 204-06 10-1/2 Street (e) 205-07 10-1/2 Street (f) 210-12 10-1/2 Street *390 (g) 216 10-1/2 Street (h) 217-19 10-1/2 Street (i) 218-20 10-1/2 Street (j) 226-28 10-1/2 Street (k) 1031-33 Oak Street 6. As a result of these orders and previous administrative determinations by defendant’s inspection division, plaintiffs were precluded under threat of criminal prosecution from making any alterations or repairs on their property. Plaintiffs made repeated attempts to repair or improve their property but were never issued appropriate building permits. The city’s decision to preclude repair of the premises described above was without justification or excuse and an unlawful exercise of police power. 7. In addition to orders referred to above, defendant Demolished five dwellings owned by plaintiffs: (a) 209-11 10-1/2 Street (b) 221 10-1/2 Street (c) 222-24 10-1/2 Street (d) 225 10-1/2 Street (e) 1037-39 Oak Street Upon demolition, defendant charged plaintiffs $1,554.53 for the destruction of their property. Plaintiffs are informed and believe and therefore allege that their demolition and resulting expense were unlawful acts by defendant, constituting a wrongful taking of their property without due process of law.” Defendant City of Winston-Salem in its answer alleged that it had followed the procedures prescribed by law in that in each instance the plaintiffs were given notice and a hearing and no demolition order was issued until the plaintiffs had been fully afforded procedural due process. Furthermore, the defendant denied its actions in demolishing some of the dwellings constituted a wrongful taking of property without due process of law. In support of its motion for summary judgment, the defendant city filed an affidavit of A. E. Speas, Superintendent of Inspections, alleging that the defendant city had followed the prescribed statutory procedure in entering all of its orders relating to the demolition or repair of any of plaintiff’s property. *391 The affidavit further discloses that the plaintiffs did not appeal from any order entered with respect to the houses which were eventually demolished; while, with respect to some of the houses which were ordered to be repaired or demolished, the plaintiffs had appealed to the Zoning Board of Adjustment. This latter appeal was heard and decided by the Zoning Board of Adjustment on 5 April 1973. The plaintiffs filed no affidavits in opposition to the motion for summary judgment. G.S. 1A-1, Rule 56(e), Rules of Civil Procedure, provides in part: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” A careful examination of the pleadings filed in this case in conjunction with the affidavit filed by defendant in support of its motion for summary judgment, coupled with the absence of the filing of any counter-affidavits by plaintiffs, leads us to the conclusion that Judge Wood was correct in finding no genuine issue as to any material fact. See, Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E. 2d 425 (1970). Thus, we are left only to consider if the defendant is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c), Rules of Civil Procedure. G.S. 160A-441 et seq. was enacted for the purpose of insuring that minimum housing standards would be achieved in the cities and counties of this State. G.S. 160A-443 authorizes a public officer, as that term is defined in G.S. 160A-442(7), to enforce ordinances relating to unfit and unsafe dwellings by ordering the repair, alteration, or improvement of dwellings or the removal or demolition of such buildings. G.S. 160A-446 delineates the administrative remedies which are available to a property owner who is aggrieved by an order of a public officer. In the instant case, the record on its face reveals that the plaintiffs have not followed the proper review procedure as set forth in G.S. 160A-446, but rather have attempted to circumvent the established procedure by filing the cause of action how being considered. Plaintiffs must exhaust the ad *392 ministrative remedies available to them, and they cannot be allowed to undermine the prescribed statutory procedure set forth in G.S. 160A-446. See, Snow v. Board of Architecture, 273 N.C. 559, 160 S.E. 2d 719 (1968) ; Sanford v. Oil Co., 244 N.C. 388, 93 S.E. 2d 560 (1956). Furthermore, in Horton v. Gulledge, 277 N.C. 353, 177 S.E. 2d 885 (1970), Justice Lake in discussing the propriety of the taking of property without just compensation stated: “It is quite true that the police power of the State, which it may delegate to its municipal corporation, extends to the prohibition of a use of private property which may reasonably be deemed to threaten the public health, safety, or morals or the general welfare and that, when necessary to safeguard such public interest, it may be exercised, without payment of compensation to the owner, even though the property is thereby rendered substantially worthless.” Therefore, we determine that Judge Wood was correct in concluding as a matter of law that the defendants were entitled to summary judgment as to Count I of the Complaint filed on 5 March 1973. The judgment appealed from is Affirmed. Judges Britt and Carson concur.