Defendants appeal from an order dated 2 October 2006 by Judge
Gary E. Trawick in Pender County Superior Court. Heard in the
Court of Appeals 5 June 2007.
Ward and Smith, P.A., by Constantine C. Hingson and Jenna F.
Butler, for plaintiff.
Robert W. Kilroy, P.C., by Robert W. Kilroy, for defendant.
BRYANT, Judge.
Olde Point Associates Limited Partnership
and Jacob Pinson
(defendants) appeal from an order dated 2 October 2006 denying
their motion to dismiss Olde Point Property Owners Association,
Inc.
's (plaintiff's) civil action seeking, inter alia, defendants'
repair and maintenance of the Olde Point streets. For the reasonsstated, we dismiss this appeal as interlocutory.
Plaintiff is a homeowners association comprised of each lot
owner within Olde Point subdivision. It is a non-profit
corporation formed pursuant to Chapter 55A of the North Carolina
General Statutes and a Declaration of Restrictive Covenants and
Amendments. The Declaration grants the lot owners easement rights
in and to the Olde Point streets.
Defendants are the original developers of Olde Point
subdivision and are the title owners of the streets at issue in
this matter. By virtue of their ownership, representations, and
admissions, defendants assume responsibility for the repair and
maintenance of such streets. In an open letter dated 24 January
2002 (Letter of Responsibility), recorded in Book 1831, at Page
285, of the Pender County Registry, Pinson, as General Partner of
Olde Point Associates, declared:
This is to certify that OLDE POINT ASSOCIATES,
Limited Partnership, Developer will be
responsible for maintenance of all streets in
OLDE POINT DEVELOPMENT until the
responsibility for such maintenance is
transferred to Olde Point Owners Association,
Inc. or the North Carolina Department of
Transportation.
The responsibility for such maintenance has not been transferred.
When defendants constructed the Olde Point streets, they failed to
construct several of the streets to the required specifications of
the North Carolina Department of Transportation (NCDOT). Streets
not constructed to NCDOT specifications do not qualify to be
accepted by NCDOT for maintenance. Defendants represented to
plaintiff and the lot owners that the Olde Point streets would beconstructed to NCDOT standards so as to be eligible for NCDOT
maintenance. Travel on the Olde Point streets
became hazardous
due
to their lack of repair and maintenance
. In January 2006,
plaintiff incurred expenses for street repairs totaling $43,944.25.
On 5 June 2006, plaintiff commenced this civil action, seeking
the following: (1) Reimbursement for sums plaintiff spent to
repair the Olde Point streets; (2) Monetary damages for the amounts
plaintiff must spend to bring the Olde Point streets in accord with
reasonable standards; and (3) Injunctive relief compelling
defendants to prospectively carry out their maintenance
responsibilities with respect to the Olde Point streets
. On 2
August 2006, defendants filed a motion to dismiss which was brought
pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7),
17(a) and 19(b) and
12(f) of the North Carolina Rules of Civil Procedure
. On 2 October
2006, the trial court denied defendants' motion to dismiss. From
this order defendants appeal.
__________________________
The dispositive issue is whether defendants have a right to
immediate review of the trial court's denial of their motion to
dismiss. We determine they do not.
Referred Motions
Preliminarily, plaintiff filed two motions, one to amend the
record on appeal to add the Bylaws of Olde Point Homeowners
Association, or in the alternative, a motion for this Court to take
judicial notice of those same Bylaws. As discussed below, we
determine this appeal is interlocutory. Consequently, both ofplaintiff's motions are hereby dismissed as moot.
Interlocutory
A trial court's denial of a motion brought pursuant to the
foregoing procedural rules typically constitutes an interlocutory
order and, as a result, is not immediately appealable.
See, e.g.
Pineville Forest Homeowners Ass'n v. Portrait Homes Constr. Co.,
175 N.C. App. 380, 383, 623 S.E.2d 620, 623 (2006) (“[A]n adverse
ruling on a Rule 12(b)(6) motion is in most cases an interlocutory
order from which no direct appeal may be taken.”) (citations
omitted)). “The right itself must be substantial and the
deprivation of that substantial right must potentially work injury
to plaintiff if not corrected before appeal from final judgment.”
Wood v. McDonald's Corp., 166 N.C. App. 48, 55, 603 S.E.2d 539, 544
(2004) (citation omitted). “[D]etermination of whether a
substantial right is affected is made on a case by case basis.”
Creek Pointe Homeowner's Ass'n v. Happ, 146 N.C. App. 159, 162, 552
S.E.2d 220, 223 (2001),
disc. review denied, 356 N.C. 161, 568
S.E.2d 191 (2002).
In
Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593
(1982), the North Carolina Supreme Court held that the right to
avoid a trial is generally not a substantial right, but the right
to avoid two trials on the same issue may be a substantial right.
Id. at 608, 290 S.E.2d at 596. The Court stated that “the
possibility of undergoing a second trial affects a substantial
right only when the same issues are present in both trials,
creating the possibility that a party will be prejudiced bydifferent juries in separate trials rendering inconsistent verdicts
on the same factual issue.”
Id. In
Liggett Group v. Sunas, this
Court stated:
A substantial right . . . is considered
affected if 'there are overlapping factual
issues between the claim determined and any
claims which have not yet been determined'
because such overlap creates the potential for
inconsistent verdicts resulting from two
trials on the same factual issues.
Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 677
(1993)
(citation omitted). The two-part test requires a party to
show that (1) the same factual issues would be present in both
trials and (2) the possibility of inconsistent verdicts on those
issues exists.
Moose v. Nissan of Statesville, 115 N.C. App. 423,
426, 444 S.E.2d 694, 697 (1994).
Here,
defendants argue that a substantial right is affected
because each of the lot owners within the Olde Point subdivision
must bring this lawsuit, rather than plaintiff association.
Defendants argue the trial court's failure to dismiss plaintiff, or
to require joinder of each lot owner, exposes defendants to the
potential of multiple lawsuits and inconsistent verdicts related to
the same factual issues.
Defendant's argument is misplaced.
For the reasons stated in
Newcomb v. County of Carteret,
defendants have not shown they will suffer injury without immediate
appeal where:
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 rulethat rights granted by the easements differ
from the rights granted by a different legal
source. Such 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.
Newcomb v. County of Carteret, ___ N.C. App. ___, ___, 643 S.E.2d
669, 671 (2007) (appeal from the trial court's denial of
defendant's motion to dismiss was dismissed as interlocutory where
defendants failed to prove a substantial right was affected).
Defendants' speculation that there will be further litigation
between the parties is not proof of a substantial right.
Accordingly, we dismiss defendant's appeal as interlocutory.
Dismissed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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