Blevins v. Denny

• Decision Date: 17 May 1994
• Docket Number: No. 9323DC629,9323DC629
• Parties: Roscoe BLEVINS and wife, Ethel Blevins; James Farrington and wife, Ruby Farrington; Lloyd Graham and wife, Linda Graham; Eura Hart, Widow; Jean B. Key, Single; Robert L. Lewis and wife, Shirley Lewis; Hettie Sapp, Widow; Vaughn Welch and wife, Minnie Welch; and Wayne Williams, Single, Plaintiffs-Appellees, v. Alvin "Junior" DENNY; Reggie Testerman; Dana Brown; Sharon Cowan; and Linda Graham, Members of the Board of Aldermen of the Town of Lansing, and The Town of Lansing, Defendants-Appellants.
• Court: North Carolina Court of Appeals

Page 354

443 S.E.2d 354

114 N.C.App. 766

Roscoe BLEVINS and wife, Ethel Blevins; James Farrington and wife, Ruby

Farrington; Lloyd Graham and wife, Linda Graham; Eura Hart, Widow; Jean B.

Key, Single; Robert L. Lewis and wife, Shirley Lewis; Hettie Sapp, Widow;

Vaughn Welch and wife, Minnie Welch; and Wayne Williams, Single, Plaintiffs-Appellees, v. Alvin "Junior" DENNY; Reggie Testerman; Dana Brown; Sharon Cowan; and Linda

Graham, Members of the Board of Aldermen of the Town of Lansing, and The Town

of Lansing, Defendants-Appellants.

No. 9323DC629.

Court of Appeals of North Carolina.

May 17, 1994.

Kilby, Hodges & Hurley, by John T. Kilby, and Vannoy & Reeves, by Jimmy D. Reeves, West Jefferson, for plaintiffs-appellees.

Johnston and Johnston, by John C. Johnston, Jefferson, for defendants-appellants.

JOHNSON, Judge.

The Town of Lansing in Ashe County, North Carolina (hereafter, Town) conducted a bond referendum on 17 June 1986 in order to construct a water and sewer system. A week prior to the vote on the bond referendum, by letter dated 9 June 1986 to the town's residents, the Town Clerk/Finance Officer urged support of the bond referendum, stating that the Town had no intention of requiring mandatory water hook-ups to the proposed water and sewer system. The bond referendum passed by an overwhelming majority.

Following the construction of the Town's water and sewer system, the Town Clerk/Finance Officer informed the citizens of the Town that because of the few resident taxpayers located within the Town and the large amount of money necessary to complete the project, mandatory hook-ups were the Town's only option, unless taxes were raised to a prohibitive amount.

On 17 August 1989, the Town passed an ordinance requiring every person owning improved property within the corporate limits to connect to the Town's water and sewer system. An amendment to the ordinance followed, pursuant to North Carolina General Statutes § 160A-175 (Cum.Supp.1993), establishing fines and penalties for violation of the ordinance.

In a separate action to which they counterclaimed, Roscoe and Ethel Blevins were named defendants in an action brought by the Town, requiring that they connect to the Town's water and sewer system or be subject to fines and penalties. The Blevins then joined with other residents who have refused to comply with the Town's ordinance in the lawsuit sub judice against the Town and Town officials. Plaintiff residents in this case asked the court to grant a writ of mandamus requiring defendants to operate the water and sewer system without requiring plaintiff residents to connect to said system; for a permanent injunction preventing defendants from requiring said hook-up; for compensation for plaintiff residents' private wells and septic systems of which they claim they will be deprived; for a survey of the corporate limit; and for damages on the theory of unjust enrichment. Defendants answered, claiming defenses of laches and the statute of limitations among others, and counterclaiming against plaintiff residents for their noncompliance with the Town's ordinance. Plaintiff residents filed a reply to defendants' counterclaim. With plaintiff residents' consent, defendants amended their reply to include the defense of sovereign immunity. Defendant Town made a motion for summary judgment which was denied on 18 May 1993, and defendant Town gave notice of appeal to this Court.

The issue in both this case and a companion case filed simultaneously, Town of Lansing v. Key, No. 9323DC640 (N.C.App. filed 17 May 1994), is the same: did the trial court properly deny defendant Town's motion for summary judgment as a matter of law?

We note that at the trial level, the Town argued their right to appeal this interlocutory order pursuant to Corum v. University of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596, stay allowed, 326 N.C. 595, 394 S.E.2d 453, disc. review and writ allowed and dismissal denied, 327 N.C. 137, 394 S.E.2d 170 (1990), aff'd in part; rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992). The motion for summary judgment in Corum was based on immunity defenses to a section 1983 claim. In Corum, we stated:

Generally, the denial of summary judgment does not affect a substantial right and is not appealable. (Citations omitted.) In the instant case, however, we hold that the denial of summary judgment affected a substantial right and is subject to review. We reach this conclusion in light of the holding of the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511 , 86 L.Ed.2d 411 (1985), a case in which the defendant federal official's summary judgment motions, on the grounds of absolute and qualified immunity, had been denied in District Court. In Mitchell, the Supreme Court held that "denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." 472 U.S. at 525 , 86 L.Ed.2d at 424 (citations omitted). Similarly, the Court concluded that denial of a public official's claim of qualified immunity from suit, to the extent that it turns on the legal questions of whether the conduct complained of violated "clearly established law" ... is also appealable as a "final decision" within the meaning of 28 U.S.C. sec. 1291.

Corum, 97 N.C.App. at 531, 389 S.E.2d at 598. In Mitchell, the United States Supreme Court went on to explain that

entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial....

An appealable interlocutory decision must...