BESSEMER CITY EXPRESS, INC., and MIKE'S FOOD STORE, INC.,
Plaintiffs,
v
.
CITY OF KINGS MOUNTAIN, NORTH CAROLINA, a Municipal Corporation,
Defendant.
Kenneth T. Davies for the plaintiffs-appellants.
Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond
Thompson and D. Kevin Joyce; Corry & Luptak, by Clayward C.
Corry, Jr., for defendant-appellee City of Kings Mountain.
THOMAS, Judge.
Plaintiffs, Bessemer City Express, Inc., and Mike's Food
Store, Inc., initiated this declaratory judgment action in an
attempt to invalidate a zoning ordinance amendment restricting
their use of video gaming machines.
Prior to deciding the case on its merits, the trial court
denied plaintiffs' motion for a preliminary injunction. Plaintiffs
appeal, but for the reasons herein, we dismiss the appeal as
interlocutory.
On 25 July 2000, defendant, City of Kings Mountain, North
Carolina, a municipal corporation, passed an amendment to its
zoning ordinance, number Z-3-6-00, restricting the location, design
and use of video gaming machines. Arcades that do not comply withthe restrictions are prohibited from having video gaming machines
unless they apply for and obtain a conditional use permit. Any
arcade “not having a valid conditional use permit as of 31 January
2001 must immediately cease to operate.” Thus, the amendment
included a grace period for nonconforming uses of approximately six
months.
Plaintiff Bessemer City Express, Inc. operates seven video
game arcades. Plaintiff Mike's Food Store, Inc. operates two. All
of their arcades were in operation prior to the passage of the
amendment.
On 25 September 2000, plaintiffs filed a complaint for
declaratory judgment, contesting the validity of the amendment and
seeking preliminary and permanent injunctions. They claimed the
amendment would force them to close their businesses. In its
answer filed 22 November 2000, defendant asserted the following
defense: “That the time within which [plaintiffs'] uses, which were
lawful uses prior to 25 July 2000 and which thereafter became non-
conforming uses, would have to cease to operate, has not expired.”
Defendant further claimed that since plaintiffs had not applied for
any conditional use permits, they failed to exhaust the available
administrative remedies. The action, according to Kings Mountain,
was premature.
Although the record does not indicate the exact date, sometime
after the enactment of the ordinance plaintiffs submitted
conditional use permit applications for each of the arcades.
Plaintiffs also requested variances from certain restrictions inthe ordinance. However, none of the permit or variance requests
were granted by defendant. Defendant began issuing ordinance
violation citations to plaintiffs for operating video game arcades
without conditional use permits with penalties of $50.00 per day
for each location.
On 21 May 2001, the trial court heard plaintiffs' motion for
a preliminary injunction. In the order denying the request, the
trial court found that plaintiffs had not shown a likelihood of
prevailing on the merits and it did not appear plaintiff would
suffer immediate and irreparable injury if the preliminary
injunction were not issued.
Plaintiffs appeal to this Court, alleging three assignments of
error.
By their first two assignments of error, plaintiffs contend
the trial court erred in denying their motion because: (1)
plaintiff's evidence shows a likelihood of success on the merits
and a reasonable apprehension of irreparable loss unless injunctive
relief is granted; and (2) such relief is reasonably necessary to
protect plaintiffs' rights during litigation, specifically, their
vested right to continue the nonconforming uses and their
substantive due process rights. By a third assignment of error,
plaintiffs argue the trial court erred in admitting into evidence
an affidavit containing prejudicial hearsay.
However, we first turn to the interlocutory nature of this
appeal. A trial court's ruling on a motion for preliminary
injunction is interlocutory. Rug Doctor, L.P. v. Prate, 143 N.C.App. 343, 345, 545 S.E.2d 766, 767 (2001). For appellate review to
be proper, the trial court's order must: (1) certify the case for
appeal pursuant to N.C. R. Civ. P. 54(b); or (2) have deprived the
appellant of a substantial right that will be lost absent review
before final disposition of the case. N.C. Gen. Stat. §§ 1-277(a)
and 7A-27(d)(1) (2001). Here, the trial court did not certify its
order for immediate appeal. Moreover, the order does not affect a
substantial right.
The substantial right test for appealability of interlocutory
orders is more easily stated than applied. Generally, it is
necessary to consider the particular facts of the case as well as
the procedural context in which the trial court's order was
entered. Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208,
240 S.E.2d 338, 343 (1978). Despite the case-by-case approach to
the substantial right test, our Supreme Court has set forth two
general criteria for determining whether an appeal from an
interlocutory order is warranted: (1) “the right itself must be
substantial[;]” and (2) “the deprivation of that substantial right
must potentially work injury to [the party] if not corrected before
appeal from final judgment.” Goldston v. American Motors Corp.,
326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990).
Here, we need not determine whether the use or operation of
video gaming machines by plaintiffs in their businesses constitutes
a substantial right, because the trial court's denial of the
preliminary injunction did not deprive them of that, or any other,
right. At the time plaintiffs moved for the injunction, theamendment was not in effect. They were still operating as
conforming uses. Plaintiffs can make no argument that the trial
court's order deprived them of a vested right to continue as
nonconforming uses, or some other substantial right, that will work
injury to them if not corrected before appeal from final judgment.
Although our courts have recognized the inability to practice
one's livelihood and the deprivation of a significant property
interest to be substantial rights, the ordinance does not restrict
plaintiffs from operating their businesses' other functions such as
selling food and supplies. See, e.g., Redlee/SCS, Inc. v. Pieper,
__ N.C. App. __, __ S.E.2d __ (2002); City of Fayetteville v. E&J
Investments, Inc., 90 N.C. App. 268, 368 S.E.2d 20, disc. rev.
denied, 323 N.C. 171, 373 S.E.2d 105 (1988); Masterclean of North
Carolina, Inc. v. Guy, 82 N.C. App. 45, 345 S.E.2d 692 (1986).
Plaintiffs simply are limited in their use of video machines.
In City of Fayetteville, this Court noted no substantial
right was affected because there was no injunction preventing the
defendant in that case from operating its lounge, serving alcohol
and having dancers. City of Fayetteville, 90 N.C. App. at 270, 368
S.E.2d at 21. The dancers simply could not be topless. Therefore,
no irreparable harm was foreseen.
In Consolidated Textiles, Inc. v. Sprague, 117 N.C. App. 132,
450 S.E.2d 348 (1994), this Court held no substantial right was
affected when it upheld a non-compete clause restricting the
defendant from contacting the plaintiff's customers actively
solicited within the year prior to the defendant's resignation ordisclosing to third persons information identified as plaintiff's
trade secrets. Id. at 134, 450 S.E.2d at 349. This restriction
kept the defendant from contacting approximately 300 customers out
of thousands of customers that remained available. Id.
Likewise, in the instant case, plaintiffs are not prohibited
from operating their businesses as a whole. They are merely
subject to new rules regarding the use of video machines within
those businesses, pending final judgment on the merits.
Accordingly, we dismiss this appeal as interlocutory.
DISMISSED.
Judges WALKER and BIGGS concur.
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