Conover v Whitmire, (02-603) 04/15/2003

Appeal by defendant from orders entered 24 July 2001 and 17 December 2001, by Judge Robert E. Hodges in Catawba County District Court. Heard in the Court of Appeals 9 January 2003.

Martin & Monroe Pannell, P.A., by Martin Pannell and Monroe Pannell, for plaintiff-appellee.

Tate, Young, Morphis, Bach, & Taylor, L.L.P., by Thomas C. Morphis and Valeree R. Adams, for defendant-appellant.

CALABRIA, Judge.

    Defendant appeals from orders granting summary judgment to plaintiff and denying defendant's motion to amend the judgment. In 1968, L.J. Whitmire, III (“Whitmire”) opened a painting and decorating business in the downtown business district of the City of Conover (“Conover”). At that time, the zoning ordinance, enacted in 1949 (“1949 Ordinance”), permitted any land use in the business district not specifically listed. Listed, prohibited uses of property in the 1949 Ordinance included “(15) Building material storage yard . . . [and] (21) Contractor's plant or storage yard.” In 1975, 1988, and 2000, Conover enacted new zoning ordinances and amendments, which allowed only specifically listed uses in thebusiness district. Storage of building or contractors' materials was not allowed. Uses permitted under the 1949 Ordinance but prohibited under the subsequent ordinances and amendments were allowed to continue so long as they were not enlarged or changed.     In the course of his business, Whitmire stored equipment and materials outside on the premises. During the mid-1980s and through the 1990s, Conover wrote letters to Whitmire notifying him that his outside storage of materials violated the city zoning ordinances. In March 2000, Conover re-zoned two properties in the downtown business district to allow for outside storage of building materials, both of which utilized the outside areas of their businesses for that purpose. As a result of the re-zoning, Whitmire's was the only property violating zoning ordinances pertaining to business uses in the central downtown portion of Conover. Conover justified the re-zoning by explaining the properties selected were not frontage property and were not adjacent to industrial properties.
    On 4 May 2000, Conover brought suit against Whitmire for violation of the zoning ordinance, asking for an injunction. Whitmire answered, asserting pre-existing, non-conforming, valid use; civil conspiracy; and violation of substantive due process. Thereafter, Conover moved to dismiss Whitmire's counterclaims, but the trial court denied the motion and ordered Conover to file a reply. After filing its reply, Conover moved for summary judgment. The trial court heard arguments and on 24 July 2001 issued an order granting Conover's motion, holding, “there is no genuine issue asto any material fact of the Defendant's violations of the Conover Zoning Ordinance.” The trial court permanently enjoined Whitmire from using his property for outdoor storage and as a storage or warehouse building. On 27 July 2001, Whitmire filed a motion to amend judgment seeking to clarify which zoning ordinance he violated. Whitmire also challenged the trial court's failure to conduct a hearing to determine a reasonable time for compliance. The court denied this motion in an order entered 17 December 2001. Whitmire appeals. Because the order granting summary judgment failed to dispose of the case in its entirety, the dispositive question presented is whether this appeal is interlocutory.
    Where an order by the trial court is “made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy[,]” it is interlocutory and not generally appealable. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). “Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.” Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951). However, an interlocutory order may be immediately appealed in two circumstances: (1) “when the trial court enters 'a final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal,” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444S.E.2d 252, 253 (1994) (citations omitted), N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001); or (2) “when 'the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.'” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (citations omitted), N.C. Gen. Stat. §§ 1-277, 7A-27(d)(1) (2001). The appellant bears the burden of proving the applicability of one of the exceptions. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998) (citations omitted).
    Whitmire asserts the judgment of the trial court is a final judgment. We disagree. The trial court denied a motion by Conover to dismiss the counterclaims asserted by Whitmire. Thereafter, Conover moved for summary judgment, and the trial court granted the motion on the “Issue of Violation of the Conover Zoning Ordinance.” By limiting the scope of the motion and order solely to the question of whether Whitmire's actions violated Conover's zoning ordinance, neither encompassed the counterclaims asserted by Whitmire. Notably, Whitmire's assignments of error failed to challenge the order of the trial court with regards to the counterclaims. Indeed, the record below discloses no evidence that Whitmire's counterclaims or related issues have yet been litigated or resolved; therefore, those counterclaims are still pending before the trial court, and further action by the trial court is necessary to settle and determine the entire controversy.
    Whitmire argues in the alternative that this appeal, even if interlocutory, is properly before this Court. Whitmire contendsthe trial court impliedly ruled on his counterclaims by enjoining his present use of the property, and if he should prevail in his counterclaims, he could be exposed to inconsistent verdicts. As noted before, it is the appellant's burden to show the applicability of exceptions to the general rule that interlocutory appeals are not properly before this Court. Abe, 130 N.C. App. at 334, 502 S.E.2d at 881. “It is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order . . . .” Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254. We are unwilling to disturb well- settled principles concerning interlocutory appeals merely because the order of the trial court could be construed as an implied ruling on claims, particularly in the absence of evidence showing the litigation of such claims. Whitmire has failed to carry his burden. Accordingly, we remand this case to the trial court for further determination on the counterclaims asserted by Whitmire.
    Reversed and remanded.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***