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ROBERT TIMBERLAKE NEWCOMB, III, SCOTT D. NAFE, GARY T. DAVIS, AND
WIFE, KAREN J. DAVIS, AND PELHAM JONES, Plaintiffs, v. COUNTY OF
CARTERET, UNITED STATES OF AMERICA, GEORGE BROWN, JULIAN M.
BROWN, JULIAN BROWN, JR., EARL CHADWICK, TEMPLE CHADWICK, GLORIA
DAVIS, RANDY FRYE, NORMAN FULCHER, JOE O'NEAL GARNER, ROBERT
GUTHRIE, SAMMY GUTHRIE, GRAY HARRIS, MAUREEN HARRIS, MYRON
HARRIS, TAMMY HILL, DAVID N. JONES, LARRY KELLUM, LARRY KELLUM,
JR., ROBERT KITTRELL, LEE LAWRENCE, D.A. LEWIS, JEFF LEWIS, MARK
LEWIS, THOMAS LEWIS, DENISE LEWIS, LUKE MIDGETT, RANDY STEVE
MILAM, JR., LARRY MOORE, CHARLES NEWKIRK, CRAIG NEWKIRK, BECKY
PAUL, THE ANNIE PINER FAMILY LIMITED PARTNERSHIP, ROSALIE
CHADWICK PINER, TIMMY POTTER, NINO GIOVANNI PUPATTI, LUTHER
ROBINSON, KENNY RUSTICK, THOMAS ALLEN SMITH, THOMAS ALLEN SMITH,
JR., JEFFREY TAYLOR, SAMUEL THOMAS, CYNTHIA THOMAS, SUSANNE
WHITE, KEVIN WILLIAMSON, SONNY WILLIAMSON, MELVIN WILLIS, TERRY
WILLIS, ROBERT WAYNE WORKMAN, JR., Defendants
Filed: 1 May 2007
Appeal and Error--appealability_denial of motion to dismiss--failure to identify substantial
Defendants' appeal from the denial of their motion to dismiss plaintiffs' complaint in a
declaratory judgment action, seeking the court to declare the rights of the parties with respect to
the pertinent easements, is dismissed as an appeal from an interlocutory order because defendants
failed to identify a substantial right that would be lost absent immediate appellate review.
Appeal by defendants from order entered 28 April 2006 by
Senior Resident Superior Court Judge Benjamin G. Alford in Carteret
County Superior Court. Heard in the Court of Appeals 29 March
Ward and Smith, P.A., by Ryal W. Tayloe, for plaintiffs-
appellees Scott D. Nafe, Gary T. Davis, Karen J. Davis, and
Harvell & Collins, P.A., by Wesley A. Collins, for plaintiffs-
appellees Robert Timberlake Newcomb, IV, Gary T. Davis, Karen
J. Davis, and Pelham Jones.
Chesnutt, Clemmons & Peacock, P.A., by Gary H. Clemmons, for
defendants-appellants George Brown, Julian M. Brown, Julian M.
Brown, Jr., Earl Chadwick, Temple Chadwick, Randy Frye, Norman
Fulcher, Joe O'Neal Garner, Robert Guthrie, Sammy Guthrie,
Maureen Harris, Tammy Hill, Larry Kellum, Larry Kellum, Jr.,
Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, MarkLewis, Thomas Lewis, Denise Lewis, Luke Midgett, Randy Steve
Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky
Paul, Timmy Potter, Nino Giovanni Pupatti, Luther Robinson,
Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr.,
Jeffrey Taylor, Kevin Williamson, Sonny Williamson, Melvin
Willis, Terry Willis, and Robert Wayne Workman, Jr.
Wheatly, Wheatly, Weeks, Valentine & Lupton, P.A., by C.R.
Wheatly, III, for defendant-appellee County of Carteret.
Defendants appeal from the denial of their motion to dismiss
plaintiffs' complaint. We dismiss as interlocutory.
Marshallberg is a coastal town in Carteret County, North
Carolina. The Marshallberg harbor is a small boat harbor whose
waters flow into Sleepy Creek, which in turn flows into Core Sound
adjacent to the Atlantic Ocean. The harbor was built approximately
fifty years ago by dredging an area of Marshallberg next to Sleepy
Creek. In 1956 and 1957 property owners adjoining the proposed
harbor area granted an easement to Carteret County, allowing county
employees access to their properties in order to build and maintain
the harbor. The property owners also granted a perpetual easement
to an area at one end of the harbor, allowing the county to
construct a public boat landing there, and Carteret County granted
an easement to the United States of America, allowing federal
employees to work on the project.
For fifty years after the harbor was built, townspeople built
docks along the waterfront, moored boats at these docks, and
accessed their docks via harborfront properties. In recent years,
conflict has arisen about this local practice, and about the
respective rights of the general public, the harbor's waterfrontproperty owners, and local fishermen who have docked fishing boats
at docks built in front of the waterfront property owners' land.
Plaintiffs are the present owners of waterfront property along
Marshallberg harbor. On 26 July 2005 plaintiffs filed a
declaratory judgment action against defendants. Their complaint
identified several groups of defendants, including a group
designated in Exhibit B as defendants who owned no harborfront
property. The parties to the present appeal consist of the
defendants listed in plaintiffs' B group. Plaintiffs sought: (1)
a judgment declaring the rights conveyed by the easements; (2) a
declaration that plaintiffs have certain riparian rights subject
only to the easements; and (3) an injunction barring defendants
from trespassing on their property, except as permitted under the
Following the filing of plaintiffs' complaint, answers were
filed by defendants Carteret County, David Jones, Susanne White,
Gloria Davis, Samuel and Cynthia Thomas, and the United States,
each generally asking the trial court to declare the rights of the
parties with respect to the easements. On 23 September 2005
defendants/appellants filed an answer and moved to dismiss
plaintiffs' complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(1) for lack of subject matter jurisdiction; and under
12(b)(6) for failure to state a claim for relief. On 24 April 2006
plaintiffs moved to amend their complaint. Following a hearing
conducted 1 March 2006, the trial court on 28 April 2006 entered an
order denying defendants' motion to dismiss, and denyingplaintiffs' motion to amend their complaint. From this order
Right to Appeal
The dispositive issue is whether appellants have a right to
immediate review of the trial court's denial of their motion to
dismiss. They do not.
A judgment is either interlocutory or the final determination
of the rights of the parties. N.C. Gen. Stat. § 1A-1, Rule 54(a)
(2005). An order or judgment is merely interlocutory if it does
not determine the issues but directs some further proceeding
preliminary to final decree. Greene v. Charlotte Chemical
., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961).
In the instant case, it is undisputed that defendants appeal from
an interlocutory order.
There is generally no right to appeal an interlocutory
order. Gregory v. Penland
, 179 N.C. App. 505, 509, 634 S.E.2d
625, 628 (2006). However, interlocutory orders are immediately
appealable if 'delaying the appeal will irreparably impair a
substantial right of the party.' Hayes v. Premier Living, Inc.
181 N.C. App. __, __, 641 S.E.2d 316, __ (2007) (quoting
Hudson-Cole Dev. Corp. v. Beemer
, 132 N.C. App. 341, 344, 511
S.E.2d 309, 311 (1999)).
A party's right to avoid separate trials of the same factual
issues may constitute a substantial right. Nello L. Teer Co. v.
, 182 N.C. App. __, __, __ S.E.2d __, __ (COA06-340,
filed 20 March 2007) (citing Green v. Duke Power Co.
, 305 N.C. 603,606, 290 S.E.2d 593, 595 (1982)). This Court has interpreted
as creating a two-part test requiring that a party show '(1)
the same factual issues would be present in both trials and (2) the
possibility of inconsistent verdicts on those issues exists.' Id.
(quoting N.C. Dep't of Transp. v. Page
, 119 N.C. App. 730, 735-36,
460 S.E.2d 332, 335 (1995)). The test is satisfied when
overlapping issues of fact between decided claims and those
remaining create the possibility of inconsistent verdicts from
separate trials. CBP Resources, Inc. v. Mountaire Farms of N.C.,
., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999) (citation
Defendants assert that without immediate review of the trial
court's denial of their motion to dismiss they face the possibility
of inconsistent verdicts on the same factual issue. We disagree.
Plaintiffs filed a declaratory judgment action seeking
interpretation of the scope of certain easements. Defendants
contend that, after the trial court determines the parties' rights
as defined in the easements
, a future tribunal in a hypothetical
future proceeding might rule that rights granted by the easements
differ from the rights granted by a different legal source
a result would not be an inconsistent verdict, but merely a
reflection of the fact that one's rights in a given situation are
often determined by reference to more than one statute, rule, or
other legal source of rights. Moreover, the possibility, if any,
of inconsistent verdicts rests upon the speculation
that there will
be further litigation between the parties. For the reasons discussed above, we conclude that defendants
have failed to identify a substantial right that will be lost
without immediate review of the trial court's order, and that their
appeal should be
Judges BRYANT and STEELMAN concur.
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