Property Rights Advocacy v Long Beach, 163 NC App 205 (03-654) 03/02/2004

Appeal by plaintiffs from judgment entered 31 January 2003 by Judge Robert F. Floyd, Jr., in Brunswick County Superior Court. Heard in the Court of Appeals 4 February 2004.

    Hedrick & Morton, L.L.P., by G. Grady Richardson, Jr., for the plaintiffs.

    Roger Lee Edwards, P.A., by Roger Lee Edwards, for defendants Town of Long Beach and Town of Oak Island.

    Crossley, McIntosh, Prior & Collier, by Clay A. Collier.

    Attorney General Roy Cooper, by Special Deputy Attorney General Charles J. Murray, for the State.

    LEVINSON, Judge.
    The present appeal involves a challenge by plaintiffs to Chapter 83 of the 1998 North Carolina Session Laws (the Long Beach Act) and a local ordinance enacted pursuant thereto, Long Beach Town Ordinance § 8-7 (the Long Beach Ordinance). The Long Beach Act purports to imbue the Town of Long Beach, North Carolina with the authority to pass ordinances directing development and operation of parks on dead-end streets:
        In addition to any powers granted to the Town of Long Beach pursuant to Articles 15 and 18 of Chapter 160A of the General Statutes, the Town may pass ordinances providing for the development and operation of parks on municipal streets including those that dead- end on beaches, waterways, and at the ocean.

The Long Beach Ordinance purports to act upon the grant of statutory authority:
        All street ends . . . which dead-end into waterways in the Town of Long Beach are hereby declared to be public parks and that [sic] town staff are further authorized to develop, maintain and operate each street end as a separate park facility and to provide long- term public access to the water.

Sometime after the enactment of this ordinance, the Town of Long Beach apparently ceased to exist as a municipal corporation, and the Town of Oak Island subsequently succeeded to Long Beach's former boundaries, duties, responsibilities, assets, liabilities, and other governing municipal features. Both municipal corporations will be referred to collectively as the “Town.”
    On 17 June 2002 the plaintiffs filed a complaint seeking declaratory and/or permanent injunctive relief on the grounds that: (1) the Long Beach Act and the Long Beach Ordinance violate N.C.Const. Art. II, § 24; (2) the Town has the statutory duty to keep public and dedicated streets within its boundaries free from unnecessary obstruction; (3) the Town is barred from constructing parks on public dedicated streets, highways, and alleyways by this Court's unpublished opinion in Scronce v. Town of Long Beach, (COA98-756, May 4, 1999); (4) the Town is required to remove obstructions from its public and dedicated streets, highways and alleys; (5) the Town is not the underlying fee simple owner of public, platted, and dedicated streets within its municipal boundaries; (6) the Long Beach Act is moot by virtue of its plain language; (7) the Town may not close any of its highways, streets, and/or alleyways without first adhering to the statutory closing procedure, N.C.G.S. § 160A-299; and (8) the rights of plaintiffs and similarly situated landowners and taxpayers in defendant Town to have easements over, onto, and across public and dedicated streets, highways, and alleyways should be declared. Plaintiffs also moved for costs. Defendants moved to dismiss based on the statute of limitations.
    On 31 January 2003, the trial court entered the following summary order:
        It is hereby ordered, adjudged, and decreed as follows:
        1. [The Long Beach Act] does not violate Article 2, Section 24 of the North Carolina Constitution.
        2. That [the Long Beach Ordinance] does not violate Article 2, Section 24 of the North Carolina Constitution.
        3. The Defendants have the statutory duty (160A-196) to keep publicly dedicated and accepted streets within its municipalboundaries open and free from unnecessary obstruction.
        4. The Defendants are not bound by . . . collateral estoppel because of the unpublished decision in Scronce. . . .
        5. The Plaintiffs' Motion for Attorneys Fees and Costs is denied.
        6. The Defendants' Motions to Dismiss, based on statutes of limitation, are denied.

From this order, plaintiffs appeal.
    An order “is either interlocutory or the final determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (2003). A final judgment “disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court[,]” while an interlocutory order “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.” Veazey v. City of Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950).
    In general, there is no right to appeal from an interlocutory order. N.C.G.S. § 1A-1, Rule 54(b) (2003); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). The general prohibition against interlocutory appeals seeks “to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.” Lee v. Baxter, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37 (2001) (internal citation omitted). However, there are two significant exceptions to this rule. First, an interlocutory order is immediately appealable “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 courtcertifies in the judgment that there is no just reason to delay the appeal.” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (quoting Rule 54(b)). Second, an interlocutory order may be immediately appealed if “the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988).
    Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231 (2001). This Court has previously held that:
        A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. The right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed. Our courts have generally taken a restrictive view of the substantial right exception. The burden is on the appealing party to establish that a substantial right will be affected.

Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (internal citations and quotation marks omitted). “When an appeal is interlocutory, the statement [of the grounds for review in an appellant's brief] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C.R. App. P. 28(b)(4).    In the present case, the plaintiffs seek a permanent injunction, which would prohibit the Town from obstructing access to the Town's public streets. The trial court's ruling fails to decide this crucial issue of whether a permanent injunction will issue. Furthermore, the trial court's ruling upheld the constitutionality of the Long Beach Act and the ordinance allowing for the Town to close the streets, but at the same time provided that the Town was required to keep the public streets “open and free from unnecessary obstruction.” The trial court, however, did not rule on what effect, if any, the “unnecessary obstruction” limitation had on the Town's authority to close the streets, under the Long Beach Act and ordinance, in order to create public beach access. Nor did the trial court rule on whether the Town was required to follow the separate statutory procedure for closing dedicated public roads. Thus, without any determination on these issues, there has been no final adjudication of the rights of the parties.
    “Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves.” State v. Fayetteville St. Christian School, 299 N.C. 351, 360, 261 S.E.2d 908, 914 (1980) (citation omitted). We have no alternative except to dismiss plaintiffs' interlocutory appeal.
    Dismissed.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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