Copyright 1998 - N.C. Administrative Office of the Courts


ONSLOW COUNTY, Appellee-Plaintiff, v. GENE MOORE,

Appellant-Defendant.

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KIMBERLY MCKILLOP, Appellant-Plaintiff, v. ONSLOW COUNTY,

Appellee-Defendant.

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PATRICIA TREANTS, Appellant-Plaintiff, v. ONSLOW COUNTY,

Appellee-Defendant.

No. COA97-32

No. COA97-33

No. COA97-35

(Filed 5 May 1998)

1.    Appeal and Error § 209 (NCI4th)-- notice of appeal from judgment -- intermediate orders not presented

    Where plaintiffs only gave notice of appeal from the trial court's judgment dismissing their complaints and enjoining them from violating an ordinance regulating adult and sexually oriented businesses, the notice of appeal did not give the appellate court jurisdiction to review the trial court's denials of their motions to dismiss defendant county's counterclaims and to amend their replies to defendant's counterclaims. N.C. R. App. P. 3(d).

2.    Municipal Corporations § 332 (NCI4th); Counties § 86 (NCI4th)-- ordinance regulating adult business locations -- absence of comprehensive zoning ordinance -- police power

    The failure of a county to adopt a county-wide comprehensive zoning plan did not preclude the county from regulating the location of adult and sexually oriented businesses pursuant to its police powers. N.C.G.S. § 153A-121.

3.    Municipal Corporations § 332 (NCI4th); Counties § 86 (NCI4th)-- ordinance regulating adult business locations -- no preemption by indecent exposure statute

    A county ordinance regulating the location of adult and sexually oriented businesses was not preempted by the indecent exposure statute, N.C.G.S. § 14-190.9, to the extent that the ordinance attempts to regulate "specified anatomical areas" since the purpose of the indecent exposure statute is to regulate conduct, and the purpose of the ordinance is not to regulate the exposure of such areas but to regulate the location of adult businesses in the county.

4.    Constitutional Law § 117 (NCI4th); Municipal Corporations § 332 (NCI4th)-- ordinance regulating adult business locations -- not First Amendment violation -- not vague or overbroad

    A county ordinance prohibiting the operation of adult and sexually oriented businesses within 1000 feet of a residence, house of worship, or public school or playground does not violate the First Amendment of the United States Constitution. Nor is the ordinance unconstitutionally vague or overbroad as applied to plaintiffs' businesses.

5.    Municipal Corporations § 332 (NCI4th); Counties § 86 (NCI4th)-- ordinance regulating adult business locations -- nearness to another adult business -- preemption by statute

    The portion of a county ordinance that prohibits the operation of adult and sexually oriented businesses within 1000 feet of another adult or sexually oriented business was preempted by the statute prohibiting the location of more than one sexually oriented business in the same building, N.C.G.S. § 14-202.11.

6.    Appeal and Error § 178 (NCI4th)-- preliminary injunction -- appeal -- interlocutory order -- jurisdiction for contempt proceeding

    The trial court was not divested of jurisdiction to hold defendant in contempt for violating a preliminary injunction because an appeal of the order issuing the injunction was pending where the order was not immediately appealable since it was interlocutory and no substantial right of defendant was affected by the denial of immediate appellate review.

7.    Injunctions § 51 (NCI4th)-- preliminary injunction -- conduct before entry -- contempt improper

    The trial court erred by holding defendant in contempt for violating a preliminary injunction based partially on conduct that occurred prior to the entry of the order issuing the preliminary injunction by filing it with the clerk of court. N.C.G.S. § 5A-21(a); N.C.G.S. § 1A-1, Rule 58.

    Appeal by defendant in case No. 95 CvS 2836 from order entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Appeal by plaintiff and defendant in case No. 94 CvS 1980 from judgment entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Appeal by plaintiff and defendant in case No. 94 CVS 1981 from judgment entered 3 July 1996 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. The appeals were consolidated and originally heard in the Court of Appeals 16 September 1997. This Court dismissed the appeals for violations of the Rules of Appellate Procedure on 21 October 1997. 127 N.C. App. 546, 491 S.E.2d 670 (1997). In an order dated 5 March 1998, the Supreme Court of North Carolina vacated the decision of the Court of Appeals and remanded the case to the Court of Appeals for consideration on the merits. Heard in the Court of Appeals on remand on 19 March 1998.

    Jeffrey S. Miller for appellants Moore, McKillop and Treants.

    Shipman & Associates, L.L.P., by Gary K. Shipman, Carl W. Thurman, III, and C. Wes Hodges, II, for appellee Onslow County.

    SMITH, Judge.

    Appellants Gene Moore, Kimberly McKillop and Patricia Treants each own businesses alleged to be in violation of an ordinance of appellee Onslow County (the County) entitled "Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses in Onslow County, NC." (the ordinance). The ordinance, which contains specific definitions of an "adult business," a "sexually oriented business," "specified anatomical areas" and "specified sexual activities," provides that adult and sexually oriented businesses shall not be permitted in any building located within 1000 feet in any direction from a residence, house of worship, public school or playground, or other adult or sexually oriented business. All adult and sexually oriented businesses operating on 21 September 1992, the effective date of the ordinance, were required to comply with the terms of the ordinance within two years. The ordinance also provided that injunctive relief and the issuance of orders of abatement could be used to enforce compliance with the ordinance. A resolution adopted by the County Board of Commissioners stated that

        after comprehensive study of potential deleterious secondary effects of certain types of sexually oriented adult businesses, the Board of Commissioners of Onslow County finds that it is appropriate and necessary to prevent those deleterious secondary effects which can reasonably be expected to result from the inappropriate location or concentration of such businesses . . . .

In addition, Article II of the Ordinance stated that "[f]or the purpose of promoting the health, safety, morals and general welfare of the citizenry of Onslow County, this Ordinance is adopted by the Board of Commissioners to regulate adult and sexually oriented businesses, as hereby defined, located in Onslow County."

    After being notified of the necessity of compliance with the ordinance, McKillop and Treants filed complaints on 20 September 1994 seeking declarations that the ordinance violated the North Carolina General Statutes and the North Carolina Constitution. Both complaints requested that the trial court enter judgments declaring the ordinance invalid and unconstitutional and enjoining the County from enforcing the ordinance. In response to the complaints, the County filed answers and counterclaims. Alleging that McKillop and Treants operated businesses in violation of the ordinance, the County requested that the complaints be dismissed and that McKillop and Treants be enjoined from operating their businesses as nonconforming adult and sexually oriented businesses. In response to the County's answers and counterclaims, McKillop and Treants alleged the ordinance violated the United States Constitution. On 3 July 1996, the trial court entered judgments dismissing the complaints with prejudice and enjoining McKillop and Treants from operating their businesses in any building located within 1000 feet of a residence, house of worship, or public school or playground. However, the trial court specifically found and concluded that the ordinance was partially preempted by N.C. Gen. Stat. § 14- 202.11 (1993), which prohibits any building from containing more than one adult establishment.

    On 5 December 1995, the County filed an action against Moore, pursuant to the ordinance, seeking a mandatory and/or prohibitory preliminary and permanent injunction and order of abatement commanding Moore to comply with the provisions of the ordinance. On 18 January 1996, nunc pro tunc 15 December 1995, the trial court found that Moore operated a sexually oriented business in violation of the ordinance and entered a preliminary injunction commanding Moore to bring the business in compliance with the ordinance and prohibiting him from violating the ordinance. This order was filed with the Onslow County Clerk of Court on 26 March 1996. Moore gave notice of appeal from the entry of the preliminary injunction on 18 April 1996. On 3 July 1996, the trial court entered an order finding that Moore willfully failed to comply with the provisions of the injunction and holding him in contempt. On 3 December 1996, this Court, in an unpublished opinion (COA96-828), dismissed Moore's appeal of the preliminary injunction as interlocutory.

    McKillop and Treants appeal the judgments dismissing their complaints with prejudice and permanently enjoining them from operating their businesses in buildings located within 1000 feet of a residence, house of worship, or public school or playground. The County appeals from the portion of these judgments declaring the ordinance partially preempted by N.C. Gen. Stat. § 14-202.11. Moore appeals the 3 July 1996 order finding him in contempt of the preliminary injunction issued 18 January 1996, nunc pro tunc 15 December 1995.

I. McKillop's and Treants' appeals

    [1]In their first two assignments of error, McKillop and Treants contend the trial court erred by denying their motions to dismiss and by denying their motions to amend their replies to the County's counterclaims. However, McKillop and Treants only gave notice of appeal from the trial court's judgments entered 3 July 1996 dismissing their complaints and enjoining them from violating the ordinance. Our Rules of Appellate Procedure require that a party entitled to appeal from a judgment or order "may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule." N.C.R. App. P. 3(a). The notice of appeal "shall designate the judgment or order from which appeal is taken . . . ." N.C.R. App. P. 3(d). "Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed." Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683, disc. review denied and appeal dismissed, 327 N.C. 633, 399 S.E.2d 326 (1990).

    McKillop and Treants cite In re Foreclosure of Allan & Warmbold Constr. Co., 88 N.C. App. 693, 696, 364 S.E.2d 723, 725, disc. review denied, 322 N.C. 480, 370 S.E.2d 222 (1988), for the proposition that an appeal from a final judgment or order includes intermediate orders "'involving the merits and necessarily affecting the judgment[]'" (quoting N.C. Gen. Stat. § 1-278). In Allan & Warmbold, the trial court permitted an upset bidder in a public foreclosure sale to withdraw his bid and directed that the property in question be resold. Id. at 694, 364 S.E.2d at 724. The appellants did not appeal from the resale order but from the final order confirming the second resale four months later. Id. This Court determined that the validity of the order withdrawing the upset bid and directing a resale of the foreclosed property could properly be considered in an appeal from the order confirming the second resale. Id. at 696, 364 S.E.2d at 725. Noting that the order withdrawing the upset bid was interlocutory, we stated that

        we are not barred from considering the validity of the order . . . because the appellants did not appeal from it within the time required by Rule 3, N.C. Rules of Appellate Procedure. G.S. 1-278 permits us, incident to an appeal from a final judgment or order, to review intermediate orders 'involving the merits and necessarily affecting the judgment,' and the order striking the upset bid and requiring a resale is such an order.

Id. (emphasis added). It is apparent that Allan & Warmbold discusses the appealability issue with respect to the time within which an appeal must be filed as set forth in N.C.R. App. P. 3(c), and not whether a notice of appeal must be filed. The record on appeal and briefs in Allan & Warmbold reflect that the precise issue before this Court was whether notice of appeal from the resale order had to be given within ten days (now 30 days) following signing and entry of the resale order. In fact, the appeal from the resale order was filed within 10 days of the entry of the final order of confirmation. We therefore believe Allan & Warmbold is inapposite to the instant case.

    We do, however, find the case of Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 411 S.E.2d 645 (1992), instructive. In Rite Color Chemical Co., we held that where defendant gave notice of appeal from the trial court's order on unconscionability and directed verdict, and from a subsequent judgment, the notice of appeal did not give this Court jurisdiction to review the trial court's orders denying defendant's motions to amend its pleadings. Id. at 17, 411 S.E.2d at 647. Because McKillop and Treants failed to file notices of appeal from the trial court's denials of their motions to dismiss and to amend their replies to the County's counterclaims, we need not address those issues.

    McKillop and Treants next contend the trial court erred by issuing an injunction which orders them to obey an ordinance that violates Chapter 153 of the General Statutes, is preempted by state law, and violates their federal and state constitutional rights. However, for the reasons set forth below, we conclude the trial court properly enjoined McKillop and Treants from operating their businesses within 1000 feet of a residence, house of worship, or public school or playground.