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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1639


Filed: 17 July 2007

Carolina Nonprofit Corporation,
         v.                        Pender County
                                No. 06 CVS 525
PARTNERSHIP, A Delaware Limited
Partnership, OLDE POINT
Carolina Corporation, OLDE POINT
ONE, LLC, a North Carolina
Limited Liability Company,
Carolina Limited Liability
THREE, LLC, a North Carolina
Limited Liability Company,

    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.

    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.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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