STATE OF NORTH CAROLINA IN THE GENERAL COURT OF

JUSTICE SUPERIOR COURT

NEW HANOVER COUNTY DIVISION
FILE NO.: 17-CVS-003094

TOWN OF WRIGHTSVILLE BEACH, a )

North Carolina Corporation and Body Politic, )
)
Plaintiff, )
)
MOTION TO SET ASIDE
v. )
) JUDGMENT
WRIGHTSVILLE BEACH JET SKI ) N.C. R. Civ. Pro. 60(b)(4)
RENTALS, INC., f/k/a WRIGHSTVILLE )
BEACH JET SKI RENTALS, LLC; and ) MOTION TO DISMISS
CHRISTOPHER T. MANGUM, Individually, ) N.C. R. Civ. Pro. 12(b)(1)
and
d/b/a WRIGHTSVILLE BEACH JET SKI )
RENTALS, )
)
Defendants. )
)

NOW COME Defendants, WRIGHTSVILLE BEACH JET SKI RENTALS, INC., f/k/a

WRIGHSTVILLE BEACH JET SKI RENTALS, LLC (“WB-JSR”); and CHRISTOPHER T.

MANGUM, individually (“Mangum”), and d/b/a WRIGHTSVILLE BEACH JET SKI

RENTALS, and, by and through the undersigned counsel, respectfully move the Court under

Rule 60 of the North Carolina Rules of Civil Procedure, for entry of an Order declaring void and

setting aside the Consent Judgment entered by the Honorable R. Kent Harrell on April 25, 2018

(“Consent Judgment”) and all subsequent Orders arising therefrom, including the Order of

Contempt entered against Defendants on September 10, 2018 by the Honorable Phyllis M.

Gorham. Defendants further move pursuant to N.C. R. Civ. Pro. 12(b)(1) for dismissal of the

action. In support of its Motions, the undersigned shows unto the Court:

MOTION TO SET ASIDE JUDGMENT

1. This is an action purportedly brought by Plaintiff, by and through outside counsel

 H. Mark Hamlet of the law firm Hamlet Law1, for the recovery of civil penalties and injunctive

relief arising out of citations issued to Defendants for alleged violations of the Wrightsville

Beach North Carolina Code of Ordinances (the “Code”), specifically § 155.1.12.3 of the Code’s

Unified Development Ordinance (the “UDO”).

2. Upon review of available public records, information, and belief, Plaintiff Town

of Wrightsville Beach did not have standing to bring this lawsuit against Defendants at its

commencement.

3. Specifically, Plaintiff’s charter only authorizes it to bring suit by and through its

Town Attorney or their designees. Plaintiff’s charter and ordinances do not contain any authority

for the Town to engage outside counsel.

4. The Town Attorney at the time this suit was initiated was John Wessell. The

current Town Attorney is Brian Edes. The Town Attorney's signature or joinder to this action

after it was initiated does not appear on any of the pleadings or documents.

5. Standing is a non-waivable prerequisite for any suit. “If a party does not have

standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.” Woodring v.

Swieter, 180 N.C. App. 362, 366, 637 S.E.2d 269, 274 (2006).

6. The party bringing the action has the burden of proving standing. State ex. rel. City

of Albemarle v. Nance, 266 N.C. App. 353, 358 (2019).

7. The elements of standing are an indispensable part of the plaintiff's case, each

element must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation. Fuller v. Easley, 145 N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001).

8. “Whenever it appears by suggestion of the parties or otherwise that the court lacks

1
Formerly Hamlet & Associates, PLLC
jurisdiction of the subject matter, the court shall dismiss the action.” N.C. Gen. Stat. § 1A-1, Rule

12(h)(3).

9. It is well-established that municipalities in North Carolina are creations of the

legislature that have only those powers delegated to them by the General Assembly. See Quality

Built Homes Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

10. Article I, § 1.2 of the Charter of the Town of Wrightsville Beach provides: “The

Town shall have and may exercise all of the powers, duties, rights, privileges and immunities

conferred upon the Town of Wrightsville Beach specifically by this Charter or upon municipal

corporations by general law. The term "general law" is employed herein as defined in G.S. 160A-

12.”

11. Article IV, § 4.5 of the Charter of the Town of Wrightsville Beach provides: “The

Board shall appoint a Town Attorney licensed to practice law in North Carolina. It shall be the

duty of the Town Attorney to represent the Town, advise Town officials and perform other duties

required by law or as the Board may direct.”

12. Wrightsville Beach Ordinances Section 155.1.8.3 provides: “Unless otherwise

specified in the UDO, the identification of certain officials, including the Town Manager, Planning

& Parks Director, City Attorney, or any other Department Director or Town Official to perform a

task or carry out a specific responsibility, shall also include the designee of such official.”

13. Neither the Charter nor the Town’s ordinances contain any authority for the Town

to engage outside counsel to represent it. Rather, the Town is required to be represented by the

Town Attorney or his designee.

2
"General law" means an act of the General Assembly applying to all units of local
government, to all cities, or to all cities within a class defined by population or other criteria,
including a law that meets the foregoing standards but contains a clause or section exempting
from its effect one or more cities or all cities in one or more counties. § 160A-1(4).
 14. By enacting an ordinance defining the proper party to initiate an action for the

city, the Town has established a procedure that it is then obligated to follow. “Having exercised

[its] authority by enacting a zoning ordinance, the Town must follow the procedures it has set

therein. If such procedures are inconvenient, the Town should change them, not ignore them.”

Town of Kenansville v. Summerlin, 70 N.C. App. 601, 602 (1984).

15. There is no evidence that the Town or the Town Attorney ever designated H.

Mark Hamlet or Hamlet Law to represent it. Since the authority of the outside counsel goes

directly to Plaintiff’s standing, it is Plaintiff’s burden to plead and prove such authority.

16. This case is squarely controlled by State ex. rel. City of Albemarle v. Nance, 266

N.C.App. 353 (2019). In that case, the City of Albemarle attempted to bring a civil suit against a

hotel that was alleged to be a hotbed of criminal activity. The defendants argued that the court

lacked subject matter jurisdiction because the city had failed to properly engage outside counsel.

Specifically, the city’s ordinances required that in order to bring suit through outside counsel, the

city council was required to adopt a resolution to do so. “While the City's outside counsel asserted

at oral argument that both he and previous trial counsel were hired pursuant to a resolution of the

city council, no evidence of this authority exists in the record.” Nance at 361.

17. The Nance court ruled that the trial court had properly dismissed the action.

Albemarle had defined the City Attorney as the proper party to initiate an action on behalf of the

city. It could not authorize any other person to file suit without following the proper procedures to

do so.

18. To the extent that the authority to appoint outside counsel is implied, in the

absence of any specific mechanism in the ordinance for doing so, appointment must be enacted by

a resolution of the city council. See N.C. Gen. Stat. § 160A-12: “A power, function, right,

privilege, or immunity that is conferred or imposed by charter or general law without directions or
restrictions as to how it is to be exercised or performed shall be carried into execution as provided

by ordinance or resolution of the city council.” There is no evidence that the Town’s Board of

Alderman ever passed an ordinance or resolution to appoint H. Mark Hamlet as a designated

representative of the Town.

19. In the absence of subject-matter jurisdiction, any order entered by the Court is

void. “A lack of jurisdiction or power in the court entering a judgment always voids the judgment,

and a void judgment may be attacked whenever and wherever it is asserted, without any special

plea.” Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952).

20. This action was brought to enforce the terms of the Town’s unified development

ordinance (UDO). Specifically, Plaintiff alleged that Defendants had violated UDO Section

155.1.12.3(A), which provides that “no land shall be used or occupied . . . until a certificate of

zoning compliance shall have been issued by the UDO Administrator.”

21. The plain and unambiguous language of UDO § 155.1.4.2(B) in place at the time

of the complaint states: “[I]n accordance with NC General Statutes 160A-392 3, the Town of

Wrightsville Beach UDO applies to state-owned lands only when a building is involved.”

[emphasis added]. The term “Building” is expressly defined in Exhibit A to the UDO as “[a]ny

structure enclosed and isolated by exterior walls constructed or used for residence, business,

industry, or other public or private purpose, or accessory thereto.”

22. The land used by Defendants, allegedly without a certificate of zoning

compliance, was the N.C. Wildlife Commission’s Public Boating Access Area located at 109

Causeway Dr, Wrightsville Beach, NC 28480 and the adjacent NCDOT drawbridge right-of-way

for U.S. 74, both state-owned lands. No building has ever been constructed on these lands. By its

terms, the UDO does not apply to any use of this property.

3
This provision has since been recodified as N.C. Gen. Stat. § 160D-913.
 23. The Town lacks the ability to enforce the UDO on this property. Its attempt to do

so exceeds its authority and is therefore invalid.

24. Defendants cannot validly consent to a judgment that exceeds the Town’s

authority. The limitation on regulation of state-owned lands is waivable, if at all, only by the State

of North Carolina, which is not a party to this proceeding.

25. A void judgment binds no one. It is immaterial whether the judgment was or was

not entered by consent. Hanson, supra; Allred v. Tucci, 85 N.C. App. 138, 144, 354 S.E.2d 291,

295, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987)

26. A party who is subject to an order by a trial court which is void, may attack that

order at any time, pursuant to Rule 60(b)(4) of the Rules of Civil Procedure. N.C.G.S. § 1A-1,

Rule 60(b); Allred at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be attacked

at any time).

MOTION TO DISMISS

27. Whenever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action. N.C. Gen. Stat. § 1A-1, N.C.

R. Civ. P. 12(h)(3) (2017).

28. Questions of standing are properly addressed in N.C. Gen. Stat. § 1A-1, N.C. R.

Civ. P. 12(b)(1), motions to dismiss.

29. Because the Plaintiff does not have the authority to pursue the relief sought in its

Complaint, the Court lacks subject matter jurisdiction over this action and, therefore, under Rule

12(b)(1) of the Rules of Civil Procedure, the claims must be dismissed.

30. Defendants reserve the right to pursue claims for damages upon dissolution of an

improper injunction either by motion or in an independent action as provided by N.C. R. Civ. Pro.

65.
 ATTORNEY FEES

31. N.C. Gen. Stat. § 6-21.7 states: “In any action in which a city or county is a party,

upon a finding by the court that the city or county violated a statute or case law setting forth

unambiguous limits on its authority, the court shall award reasonable attorneys’ fees and costs to the

party who successfully challenged the city’s or county’s action.”

32. The provision for attorney fees is mandatory through the use of the word “shall”.

TAC Stafford, LLC v. Town of Mooresville, 872 S.E. 2d 95 at ¶ 27 (N.C. App. 2022)

33. The case law forbidding use of outside counsel without proper authorization is

unambiguous. This case is squarely controlled by State ex. rel. City of Albemarle v. Nance, 266

N.C.App. 353 (2019).

34. The provision of the UDO restricting its terms from being enforced on state-

owned property is unambiguous.

WHEREFORE, the undersigned respectfully prays unto the Court:

1. For entry of an Order declaring void and setting aside the Consent Judgment

entered April 25, 2018 and all subsequent Orders entered further dismissing all claims in the

underlying Complaint, pursuant to Rule 60(b)(4) and Rule 12(b)(1) of the North Carolina Rules of

Civil Procedure, for lack of subject matter jurisdiction;

2. That all costs of the actions, including Defendants’ reasonable attorney’s fees, be

taxed against Plaintiff;

3. For such other and further relief as the Court seems just and proper.

Respectfully submitted this the __ day of November, 2022.

BA Folk, PLLC

Randy H. Herman
N.C. State Bar No.: 46101
Attorney for Defendants
PO Box 90426
Raleigh, NC 27675
T: (919) 825-1250
F: (919) 882-8297
E: rherman@bafolk.com
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this day the foregoing document in the above-

captioned matter was duly served on all parties to this cause by:

[] Hand-delivering a copy hereof to each party or the attorney thereof.

[] Sending via facsimile a copy hereof to each party or the attorney thereof.

[] Depositing a copy hereof, postage pre-paid in the U.S. Mail, properly addressed to:

H. Mark Hamlet
5215 Junction Park Circle, Suite 202
Wilmington, NC 28412
Facsimile: 910-399-4277
Purported Attorney for Plaintiff Town of Wrightsville Beach

This the __ day of November, 2022.

Randy H. Herman
N.C. State Bar No.: 46101
Attorney for Defendants
PO Box 90426
Raleigh, NC 27675
T: (919) 825-1250
F: (919) 882-8297
E: rherman@bafolk.com