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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December 2007
No. 06 CVS 203
Appeal by Defendant from judgment entered 14 March 2007 by
Judge John E. Nobles in Pamlico County Superior Court. Heard in
the Court of Appeals 29 November 2007.
Ward and Smith, P.A., by Eric J. Remington, for Plaintiff-
Womble Carlyle Sandridge & Rice, PLLC, by Douglas W. Hanna and
Sarah L. Buthe, for Defendant-appellant.
Defendant (Pamlico County) appeals from an order granting
partial summary judgment on the pleadings for Plaintiff Shareheart
Development Corporation. We dismiss as interlocutory.
Briefly summarized, the record establishes the following:
Plaintiff is a corporation that develops real estate projects in
Pamlico County. In 2006 Plaintiff was planning to develop a
condominium project called Cribbs Cove Cottages (the Project). The
Project is a waterfront, cottage community of eight single family
residential homes located on twelve and a half acres of land in
Pamlico County. On 19 June 2006 Pamlico County adopted the PamlicoCounty Group Housing Projects Ordinance (the Ordinance). In
September 2006 the Pamlico County Building Inspection Department
issued permits to Plaintiff authorizing it to build the eight
residences planned for the Project. Plaintiff began construction
of the Project.
In October 2006 a controversy developed between the parties
regarding whether the Ordinance applied to the Project. Pamlico
County contended that the Project fell within the ambit of the
Ordinance, while Plaintiff disagreed. In early November 2006,
Pamlico County revoked Plaintiff's building permits and placed
Stop Work Orders on the residences that were under construction.
On 13 November 2006 Plaintiff filed suit against Pamlico
County. Plaintiff filed claims for injunctive and declaratory
relief, seeking a declaration that the Ordinance did not apply to
the Project, and asking that Pamlico County be temporarily,
preliminarily, and permanently enjoined and restrained from
enforcing the Ordinance against the Project. Plaintiff also
asserted a claim for vested common law rights, based on Plaintiff's
expenditures in reliance on Defendant's initial issuance of
permits. Additionally, Plaintiff sought damages for violation of
its right to due process and asserted that the Ordinance was a
violation of its right to equal protection. Finally, Plaintiff
alleged that Pamlico County had engaged in arbitrary and capricious
application of the Ordinance.
Pamlico County answered, denying the material allegations of
the complaint and asserting various defenses. On 23 February 2007Plaintiff filed a motion for partial judgment on the pleadings
under N.C. Gen. Stat. § 1A-1, Rule 12(c). Plaintiff asserted that
the undisputed facts established its entitlement to judgment in its
favor on its claims for injunctive and declaratory relief. On 14
March 2007 the trial court granted Plaintiff's motion, from which
Pamlico County has appealed. The trial court did not certify its
order as immediately appealable under Rule 54(b).
Standard of Review
We first address the interlocutory nature of this appeal. It
is uncontroverted that [Defendant's] appeal from the trial court's
[order for partial judgment on the pleadings] is interlocutory.
'An interlocutory order is one made during the pendency of an
action, which 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.' 'Generally, there is no right of
immediate appeal from interlocutory orders and judgments.' Hamby
v. Profile Prods., L.L.C., __ N.C. __, __, __S.E.2d __, __
(November 9, 2007) (No. 507A06) (Timmons-Goodson, J., dissenting)
(quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d
377, 381 (1950) and Goldston v. Am. Motors Corp., 326 N.C. 723,
725, 392 S.E.2d 735, 736 (1990)). However, interlocutory orders
are immediately appealable if they: '(1) affect a substantial right
and (2) [will] work injury if not corrected before final judgment.'
. . . Therefore, the only way [Defendant] can maintain this appeal
is if it can show that it will lose a 'substantial right' if the
case proceeds any further at the trial level. Hamby, __ N.C. at__, __ S.E.2d at __ (quoting Goldston, 326 N.C. at 728, 392 S.E.2d
Defendant argues first that when a partial judgment as a
matter of law is combined with a permanent injunction, the order
may be immediately appealable. Defendant argues that the trial
court's order affects a substantial right because it permanently
enjoins Pamlico County from enforcing its Ordinance. We first
note that the order does not enjoin the general enforcement of the
Ordinance, but only the application of the County's Group Housing
Ordinance as against Plaintiff's development project. More
importantly, Defendant fails to articulate what substantial right
will be lost absent immediate review of the order. 'Essentially
a two-part test has developed _ the right itself must be
substantial and the deprivation of that substantial right must
potentially work injury . . . if not corrected before appeal from
final judgment.' Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d
577, 579 (1999) (quoting Goldston, 326 N.C. at 726, 392 S.E.2d at
736). Defendant has failed to demonstrate that it will lose a
substantial right without immediate review. This argument is
Defendant next argues that without immediate review of the
trial court's order, it faces the possibility of separate trials on
the same issues resulting in inconsistent verdicts. We disagree. The order for partial judgment on the pleadings ordered that
the Ordinance did not apply to the Project, and enjoined Defendant
from enforcing the Ordinance against the Project. This effectively
resolved Plaintiff's claim for a declaration that it has a vested
common law right to proceed with the project; having obtained a
declaration that the Ordinance is inapplicable to the Project, it
no longer needs to rely on common law vested interests.
Plaintiff's unresolved claims seek damages for violation of
its constitutional rights to equal protection and due process, and
for Defendant's arbitrary and capricious application of the
Ordinance. At a trial on these claims, the order for partial
judgment on the pleadings would require the trial court to instruct
the jury that, as a matter of law, the Ordinance does not apply to
the Project. Defendant argues that if, following Plaintiff's
recovery of damages in a trial, this Court were to subsequently
determine that the trial court erred in entering partial judgment
on the pleadings, Defendant would then face the possibility of
inconsistent verdicts. Defendant's contention is in error.
If Plaintiff obtains a jury verdict in its favor, Defendant
could then appeal both that verdict and the earlier order for
partial judgment on the pleadings. If this Court reversed the
trial court's order for partial judgment on the pleadings, one of
two results might obtain. If only issues of law were presented and
the Court determined that Defendant was entitled to judgment, we
could remand for entry of judgment in favor of Defendant.
Alternatively, if issues of fact were presented regarding theapplication of the Ordinance to the Project, the Court might
reverse and remand for a new trial wherein the jury would resolve
the pertinent factual issues. In either event, the
jury verdict in
favor of Plaintiff would be vacated because of its reliance on the
presumption that the Ordinance was inapplicable to the Project.
This eliminates the possibility of two trials with inconsistent
verdicts. Defendant faces only the possibility, inherent in most
appeals, of a retrial
occasioned by error at the trial level.
Finally, Defendant argues that immediate review will expedite
the administration of justice. We have reviewed Defendant's
arguments in this regard and find them without merit.
For the reasons discussed above, we conclude that Defendant's
appeal is interlocutory and must be
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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