Akers v. City of Mount Airy, COA05-140.

Citation625 S.E.2d 145
Decision Date07 February 2006
Docket NumberNo. COA05-140.,COA05-140.
PartiesAaron and Lois A. AKERS, et al., Petitioners, v. CITY OF MOUNT AIRY, a North Carolina Municipal Corporation, Respondent.
CourtCourt of Appeal of North Carolina (US)

Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr. and Roddey M. Ligon, Jr.; and Edwin M. Woltz, Winston-Salem, for petitioners-appellants.

Tharrington Smith, L.L.P., by Michael Crowell and Kristopher B. Gardner; and Gardner, Gardner & Campbell, P.L.L.C., Raleigh, by Hugh B. Campbell, III, for respondent-appellee.

GEER, Judge.

Petitioners, owners of land subjected to annexation by the City of Mount Airy, appeal a superior court order remanding the annexation ordinance to the Mount Airy Board of Commissioners for amendment to conform the boundaries of the annexation area to the requirements of N.C. Gen.Stat. § 160A-48(c)(3) (2005). Because the superior court order does not dispose of the case, but rather requires further proceedings, it is interlocutory. Petitioners have not demonstrated that a substantial right would be affected in the absence of immediate review and, therefore, we dismiss the appeal.

On 21 April 2003, the City adopted an annexation ordinance extending its corporate limits to encompass land owned by petitioners effective 1 May 2004. On 18 June 2003, the petitioners sought review of the annexation ordinance in Surry County Superior Court pursuant to N.C. Gen.Stat. § 160A-50 (2005). During a 5 April 2004 bench trial, petitioners argued that the City failed to comply with the statutory mandates of N.C Gen.Stat. §§ 160A-47, -48, and -49 (2005) and that the annexation ordinance should, therefore, be declared null and void.

After hearing testimony and reviewing the record of annexation filed pursuant to N.C. Gen.Stat. § 160A-50(c), the superior court entered an order containing 122 findings of fact and 26 conclusions of law. Based on those findings and conclusions, the court

ORDERED pursuant to G.S. 160A-50(g)(2) that [the annexation ordinance] is remanded to the Mount Airy Board of Commissioners for amendment of the boundaries of the annexation area to conform to the requirement of G.S. 160A-48(c)(3) that 60 percent of the acreage in the urban portion which is not used for commercial, industrial, governmental or institutional purposes consist of parcels three acres or less in size. The Mount Airy Board of Commissioners shall amend the ordinance within 90 days following entry of this Order, otherwise the annexation ordinance shall be void. The Mount Airy Board of Commissioners shall notify the court of the amendment of the ordinance and, upon receipt of such notification establishing that the ordinance complies with G.S. 160A-48(c)(3), final judgment shall be entered for the city and the petitioners' petition shall be dismissed.

(Emphasis added.) Petitioners have appealed from this order of remand.

Since the question whether an appeal is interlocutory presents a jurisdictional issue, this Court has an obligation to address the issue sua sponte regardless whether it is raised by the parties. Heritage Pointe Builders, Inc. v. N.C. Licensing Bd. of Gen. Contractors, 120 N.C.App. 502, 504, 462 S.E.2d 696, 698 (1995), disc. review denied, 342 N.C. 655, 467 S.E.2d 712 (1996). Generally, an order "made during the pendency of an action, which does not dispose of the case, but leaves it for further action," is interlocutory and not immediately appealable. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).

The superior court's order expressly indicated that it was not a final judgment, but rather that the court was remanding the matter to the City's Board of Commissioners for further proceedings before entry of a final judgment. The order is, therefore, interlocutory. An interlocutory order may be immediately appealed in only two circumstances: (1) when the trial court, pursuant to N.C.R. Civ. P. 54(b), enters a final judgment as to one or more but fewer than all of the claims or parties and certifies that there is no just reason to delay the appeal; or (2) when the order deprives the appellant of a substantial right that would be...

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  • High Rock Lake Partners LLC v. North Carolina Dep't Of Transp.
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    ...must address the interlocutory nature of the trial court's order, as it presents a jurisdictional issue. Akers v. City of Mount Airy, 175 N.C.App. 777, 778, 625 S.E.2d 145, 146 (2006). “An interlocutory order ... is one made during the pendency of an action which does not dispose of the cas......
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    ...Generally ¶ 15 Appellate jurisdiction is a threshold issue that we must consider sua sponte. Akers v. City of Mount Airy , 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006). Whether this Court has jurisdiction turns largely on the nature—interlocutory or final—of the order from which the p......
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    ...36, 37 (2001) (citation omitted). "[W]hether an appeal is interlocutory presents a jurisdictional issue." Akers v. City of Mt. Airy , 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006) (citation omitted); see also Feltman , 238 N.C. App. at 249, 767 S.E.2d at 618 (citation omitted).¶ 11 "As......
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