Motion To Set Aside Consent Judgment
Motion To Set Aside Consent Judgment
Motion To Set Aside Consent Judgment
NOW COME Defendants, WRIGHTSVILLE BEACH JET SKI RENTALS, INC., f/k/a
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:
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
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
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
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).
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
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
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"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.”
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
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
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,
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.
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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
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
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,
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.
28. Questions of standing are properly addressed in N.C. Gen. Stat. § 1A-1, N.C. R.
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
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
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
34. The provision of the UDO restricting its terms from being enforced on state-
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
2. That all costs of the actions, including Defendants’ reasonable attorney’s fees, be
3. For such other and further relief as the Court seems just and proper.
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: [email protected]
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:
[] 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
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: [email protected]