Rollins v Town of Cleveland, (04-997) 05/03/2005

Appeal by petitioner from order entered 8 March 2004 by Judge Christopher M. Collier in Rowan County Superior Court. Heard in the Court of Appeals 25 April 2005.

Carlton, Rhodes & Carlton, by Graham M. Carlton, for petitioner-appellant.

Parker, Poe, Adams & Bernstein, L.L.P., by R. Bruce Thompson, II and Anthony Fox, for respondents-appellees.

CALABRIA, Judge.

    On 26 June 2003, Frederick Eugene Rollins (“petitioner”) filed a writ of certiorari petitioning the trial court for reversal of a decision by the Zoning Board of Adjustment of the Town of Cleveland (the “board”), which affirmed two citations issued to petitioner by the Town of Cleveland (the “town”) for violations of the town's zoning ordinance. Petitioner appeals to this Court the trial court's dismissal of one of the five assignments of error alleged in his petition for writ of certiorari. We dismiss petitioner's appeal as interlocutory.     In 1981, the town adopted a comprehensive zoning ordinance (the “1981 ordinance”). In 1982, the town amended the 1981 ordinance by adopting an extraterritorial zoning ordinance to govern development within a limited area beyond its borders (the “1982 ordinance”). Subsequently, in 1992, the town adopted an updated comprehensive zoning ordinance (the “1992 ordinance”). Petitioner owns property outside the town, but within its extraterritorial zoning authority, on which he maintains his residence and a business involved in the delivery of transfer trucks to their purchasers.
    In March of 2003, the town issued petitioner two citations for violating the town's zoning ordinance by parking transfer trucks on his property and shuttling drivers to and from his property. On appeal by petitioner, the board upheld the citations. Petitioner then filed a writ of certiorari petitioning the trial court for reversal of the board's decision on the basis of five assignments of error. On 8 March 2004, the trial court entered an order dismissing petitioner's first assignment of error, which contended the 1981 and 1982 ordinances were invalid. From this interlocutory order, petitioner appeals.
     A judicial judgment, order, or decree is interlocutory if further action by the trial court is necessary to determine the entire controversy. Industries, Inc. v. Insurance Co., 296 N.C. 486, 488, 251 S.E.2d 443, 445 (1979). In general, a party may not appeal an interlocutory order. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998).         However, an interlocutory order “is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to [N.C. Gen. Stat.] § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.”

Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003). Pursuant to N.C. Gen. Stat. §§ 1- 277(a) and 7A-27(d) (2003) an otherwise interlocutory order may be appealed upon a showing that: (1) the order affects a substantial right and (2) the deprivation of that right will potentially work injury to the appellant if not corrected before appeal of the final judgment. N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). In an interlocutory appeal, the appellant has the burden of presenting appropriate grounds for this Court's acceptance of the appeal. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).
     Petitioner acknowledges the interlocutory nature of his appeal and the absence of a trial court certification under N.C. Gen. Stat. § 1A-1, Rule 54(b) . As grounds for his interlocutory appeal, he asserts the order appealed from affects a substantial right. We disagree.
    First, petitioner argues he has a substantial right to have his first, fourth, and fifth assignments of error tried before the same judge because these claims are factually related. “'[T]he right to avoid the possibility of two trials on the same issues can be . . . a substantial right'” where such a situation “'creat[es]the possibility that a party will be prejudiced by . . . separate trials rendering inconsistent verdicts on the same factual issue.'” Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491 (1989) (citation omitted).
    In pertinent part, petitioner's first assignment of error contended: (1) the 1981 and 1982 ordinances were “null and void ab initio”; (2) the town “never properly, legally or procedurally adopted” the 1982 ordinance; (3) the 1992 ordinance repealed the 1981 and 1982 ordinances; and (4) the town failed to properly adopt and record a map defining the extraterritorial area within its zoning authority. His fourth assignment of error contended: (1) “the use of his property constitutes a nonconforming situation protected under the 1992 [o]rdinance, if in fact, that ordinance is valid” and (2) the board erred in applying the 1981 and 1982 ordinances to him when their provisions were altered by the adoption of the 1992 ordinance. His fifth assignment of error contended the board's decision upholding the citations was “otherwise arbitrary, capricious and unreasonable and not based on substantial, material, competent evidence in the record as a whole.”
    Although petitioner argues to the contrary, there is no possibility separate trials would produce inconsistent verdicts. Petitioner's first assignment of error concerned the validity of the 1981 and 1982 ordinances, while the fourth assignment of error questions the application of the ordinances. The fifth assignment of error merely questions the board's decision to uphold thesubject violations. These assignments of error are not so factually or legally related as to create the possibility of inconsistent verdicts if not tried before the same judge.
    Petitioner's second argument is that the trial court's order affected a substantial right by materially and substantially affecting his business. “[O]ur courts have recognized the inability to practice one's livelihood and the deprivation of a significant property interest to be substantial rights . . . .” Bessemer City Express, Inc. v. City of Kings Mountain, 155 N.C. App. 637, 640, 573 S.E.2d 712, 714 (2002). However, in the instant case, under the 1992 ordinance, all action to enforce the board's decision has been automatically stayed pending resolution of petitioner's appeal of that decision. Furthermore, petitioner previously testified that he could make certain changes and bring his business into compliance. Moreover, it appears that petitioner is still operating his business. Therefore, the trial court's order has not impacted petitioner's ability to practice his livelihood. Having failed to present appropriate grounds for our acceptance of his appeal, we dismiss petitioner's appeal as interlocutory.
    Dismissed.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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