Arnold v. City of Asheville, COA04-690.

• Decision Date: 05 April 2005
• Docket Number: No. COA04-690.,COA04-690.
• Parties: Stephen and Michelle ARNOLD, Robert P. and Elizabeth M. Barr, David E. and Krystal D. Bottom, Timothy A. and Jeanette P. Bradley, Charles Michael and Debra S. Braun, Kent and Barbara Campbell, Robert E. and Aida V. Dungan, Richard R. and Charlotte D. Eley, Jonathan A. and Peggy J. Hill, Steven P. and Christi W. Hurd, John P. and Kimberly J. Kennedy, Pierce A. Kahaduwe Living Trust, Mark P. and Jacqueline G. Ruscoe, Benjamin F. and Susan E. Turner, Jacquelyn M. Webb, Trustee of the Jacquelyn M. Webb Living Trust, Marc B. and Jackie Lee Westle, Derwin J. and Nancy L.C. Williams, Robert L. and Becky L. Wilson, Stephen M. and Julia R. Eargle, and Robert A. and Jane P. Errico, Petitioners, v. CITY OF ASHEVILLE, Respondent.
• Court: North Carolina Court of Appeals

610 S.E.2d 280

Stephen and Michelle ARNOLD, Robert P. and Elizabeth M. Barr, David E. and Krystal D. Bottom, Timothy A. and Jeanette P. Bradley, Charles Michael and Debra S. Braun, Kent and Barbara Campbell, Robert E. and Aida V. Dungan, Richard R. and Charlotte D. Eley, Jonathan A. and Peggy J. Hill, Steven P. and Christi W. Hurd, John P. and Kimberly J. Kennedy, Pierce A. Kahaduwe Living Trust, Mark P. and Jacqueline G. Ruscoe, Benjamin F. and Susan E. Turner, Jacquelyn M. Webb, Trustee of the

Jacquelyn M. Webb Living Trust, Marc B. and Jackie Lee Westle, Derwin J. and Nancy L.C. Williams, Robert L. and Becky L. Wilson, Stephen M. and Julia R. Eargle, and Robert A. and Jane P. Errico, Petitioners, v. CITY OF ASHEVILLE, Respondent.

No. COA04-690.

Court of Appeals of North Carolina.

April 5, 2005.

Dungan & Associates, P.A., by Shannon Lovins, Asheville, for petitioners-appellants.

Robert W. Oast, Jr., Asheville, for respondent-appellee.

STEELMAN, Judge.

On 27 June 2002, respondent City of Asheville (respondent, Asheville or city) enacted an annexation ordinance extending its corporate limits. On 23 August 2004, petitioners filed a petition seeking judicial review of the 27 June 2002 annexation ordinance, pursuant to N.C. Gen.Stat. § 160A-50 (2004). Petitioners alleged that the area annexed by respondent failed to meet requirements set forth in N.C. Gen.Stat. §§ 160A-45, -47, -48, -49 (2004). On 4 October 2002, the City filed a response to the petition. On 9 April 2003, respondent served upon petitioners discovery requests, including respondent's first request for admission, respondent's first set of interrogatories, and respondent's first request for production of documents. Petitioners objected to respondent's discovery requests on the basis that they constituted improper discovery under N.C. Gen.Stat. § 160A-50(c) and N.C. R. Civ. P. 26. The city filed a motion to compel. Following a hearing on this motion, the trial court entered an order compelling petitioners to respond to the discovery requests but did not impose any sanctions upon petitioners. From this order, petitioners appeal.

The threshold question is whether petitioners' appeal is properly before this Court. There is no dispute that this appeal is interlocutory, as it is from an order that was "made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." North Carolina Dep't of Transp. v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995).

In general, "there is no right to immediate appeal from an interlocutory order." "This rule is grounded in sound policy considerations. Its goal is to `prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard.'" However, there are two significant exceptions to this rule. First, an interlocutory order is immediately appealable "when the trial court enters `a final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal." Secondly, an interlocutory order may be immediately appealed if "the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits."

Evans v. Evans, 158 N.C.App. 533, 534-35, 581 S.E.2d 464, 465 (2003)(internal citations omitted). "In either instance, the burden is on the appellant `to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.'" Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C.App. 682, 685, 513 S.E.2d 598, 600 (1999). There was no certification...