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Onslow County v. Phillips

No. 385A96

(Filed 6 June 1997)

No Headnotes.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 385A96

FILED: 6 JUNE 1997

ONSLOW COUNTY,

        Plaintiff

    v.

GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, and any heirs, assigns or devisees of GUY J. PHILLIPS and wife, LYNDA A. PHILLIPS, or any other person or entity claiming thereunder,

        Defendants,

    &

BETTY M. RUSSELL, ALEX WARLICK, JR., Trustee, NCNB NATIONAL BANK OF NORTH CAROLINA now NATIONSBANK, MARSHALL F. DOTSON, JR., Trustee,

        Lienholders.

--------------------------------------------------------

ONSLOW COUNTY,

        Plaintiff

    v.

GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, and any heirs, assigns or devisees of GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, or any other person or entity claiming thereunder,

        Defendants

--------------------------------------------------------

ONSLOW COUNTY,

        Plaintiff

    v.

GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, and any heirs, assigns or devisees of GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, or any other person or entity claiming thereunder,

        Defendants,

    &

NCNB NATIONAL BANK OF NORTH CAROLINA now NATIONSBANK, MARSHALL F. DOTSON, JR., Trustee,

        Lienholders

--------------------------------------------------------

ONSLOW COUNTY,

        Plaintiff

    v.

GUY J. PHILLIPS and wife, LYNDA A. PHILLIPS, and any heirs, assigns or devisees of GUY J. PHILLIPS, and wife, LYNDA A. PHILLIPS, or any other person or entity claiming thereunder,

        Defendants

    Appeal by plaintiff pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 123 N.C. App. 317, 473 S.E. 2d 643 (1996), which affirmed in part and reversed in part, and remanded an order entered by Wainwright, J., on 9 February 1995 in Superior Court, Onslow County. Heard in the Supreme Court 12 May 1997.

    Roger A. Moore for plaintiff-appellant.

    Jeffrey S. Miller for defendant-appellees.

    North Carolina Association of County Commissioners, by Lesley F. Moxley, Assistant Durham County Attorney; James B. Blackburn, III, General Counsel; and Kimberly M. Grantham, Assistant General Counsel, amicus curiae.

    PER CURIAM.

    The plaintiff's right of appeal arises from an opinion of Judge Walker concurring in part and dissenting in part from the majority opinion in the Court of Appeals. The sole issue before this Court by virtue of Judge Walker's dissent is whether the majority of the panel in the Court of Appeals erred in that part of its opinion holding that the plaintiff was not entitled to summary judgment on defendants' counterclaim for violation of defendants' constitutional rights. For the reasons stated in the concurring and dissenting opinion of Judge Walker, we conclude that the majority did err in this regard, and accordingly, we reverse that part of the opinion of the majority below. Judge Walker concurred with the majority as to the other issues in its opinion in the Court of Appeals, and those issues are not before us. Therefore, as to those issues, the decision of the Court of Appeals remains in effect.

    For the foregoing reasons, the decision of the Court of Appeals is reversed in part, and this case is remanded to that court for further proceedings consistent with this opinion.

    REVERSED IN PART AND REMANDED.

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