Clark v. Craven Regional Medical Authority

• Decision Date: 18 January 1990
• Docket Number: No. 343PA89,343PA89
• Citation: 387 S.E.2d 168,326 N.C. 15
• Court: North Carolina Supreme Court
• Parties: John F. CLARK, Chief Building Inspector of the City of New Bern, and City of New Bern, a North Carolina municipal corporation v. CRAVEN REGIONAL MEDICAL AUTHORITY, a public body and a body corporate and politic which has its principal office and place of business in the City of New Bern, Craven County, North Carolina; S.T. Wooten Construction Co., Inc., a North Carolina corporation which has its principal office and place of business in Wilson County, North Carolina; James L. Cayton Associates, Inc., a North Carolina corporation which has its principal office and place of business in New Bern, North Carolina; Electricon, Inc., a Delaware corporation which is authorized to do business in the State of North Carolina; and Southern Piping Company, a North Carolina corporation which has its principal office and place of business in Wilson County, North Carolina.

Page 168

387 S.E.2d 168

326 N.C. 15

John F. CLARK, Chief Building Inspector of the City of New Bern, and City of New Bern, a North Carolina municipal corporation v. CRAVEN REGIONAL MEDICAL AUTHORITY, a public body and a body corporate and politic which has its principal office and place of business in the City of New Bern, Craven County North Carolina; S.T. Wooten Construction Co., Inc., a North Carolina corporation which has its principal office and place of business in Wilson County, North Carolina; James L. Cayton Associates, Inc., a North Carolina corporation which has its principal office and place of business in New Bern, North Carolina; Electricon, Inc., a Delaware corporation which is authorized to do business in the State of North Carolina; and Southern Piping Company, a North Carolina corporation which has its principal office and place of business in Wilson County, North Carolina.

No. 343PA89.

Supreme Court of North Carolina.

Jan. 18, 1990.

On plaintiffs' petition pursuant to N.C.G.S. § 7A-31(b) for discretionary review prior to determination by the Court of Appeals of an order by Strickland, J. dismissing plaintiffs' action and enjoining plaintiffs from enforcing stop work orders against the defendants. Order entered on 15 June 1989, nunc pro tunc for 15 May 1989, in Superior Court, Craven County. Heard in the Supreme Court 16 November 1989.

Ward, Ward, Willey & Ward by Elizabeth Williams and A.D. Ward, New Bern, for plaintiffs-appellants.

Sumrell, Sugg, Carmichael & Ashton, P.A. by Fred M. Carmichael and Rudolph A. Ashton, III, New Bern, for defendant-appellee, Craven Regional Medical Authority.

MARTIN, Justice.

The dispositive issue on this appeal is whether the trial court erred in entering an order of abatement of this action. Additionally, a subordinate issue concerning the court's issuance of a preliminary injunction against plaintiffs will be discussed. We find that the trial court's granting of the plea in abatement was proper and that the issue concerning the preliminary injunction is not properly before this Court for review. Therefore, the order of the trial court is affirmed and the case remanded for further proceedings. Only a brief recitation of the facts is necessary for the disposition of this appeal.

In June of 1988 the General Assembly adopted 1987 N.C. Sess. Laws ch. 934 for the purpose of delegating the authority for enforcing state and local building and other safety codes relevant to the Craven Regional Medical Center (currently operating as the Craven Regional Medical Authority) to the County of Craven rather than to any cities located within the county. Plaintiff City of New Bern is a North Carolina municipal corporation located in Craven County. Chapter 934 states in relevant part:

1. Craven County shall have the exclusive jurisdiction as against any city as defined by G.S. 160A-1 for the administration and enforcement of all laws, statutes, code requirements and all other applicable regulations promulgated by the State or any city respecting building, construction, fire and safety codes as the same relate to or are legally applicable to any property owned or leased by the Craven Regional Medical Center.

1987 N.C.Sess.Laws ch. 934. 1986 N.C.Sess.Laws ch. 805 and 1987 N.C.Sess.Laws ch. 341 establish parallel authority with the county as to the New Bern-Craven Board of Education and Craven Community College, respectively.

On 9 November 1988, the City of New Bern initiated an action against Craven Regional Medical Authority, the New Bern-Craven Board of Education, and the Trustees of Craven Community College requesting a declaratory judgment pursuant to N.C.G.S. §§ 1-253 to 1-267. The city based that action on its assertion that the named acts violate article II, section 24 and article XIV, section 3 of the North Carolina Constitution and requested a declaration that they were unconstitutional, null and void. In that case, City of New Bern v. Board of Education, docketed in Craven County as 88 CVS 1780 [hereinafter City of New Bern v. Board of Education], the trial judge ordered a dismissal on the grounds that the City of New Bern lacked standing to bring the suit. The plaintiff, City of New Bern, appealed directly to this Court on discretionary review prior to determination by the Court of Appeals. Oral argument was heard immediately prior to argument in the case presented here.

The case before us, hereinafter Clark v. Craven Regional Medical Authority, was initiated by the plaintiffs following the trial court's decision to dismiss City of New Bern v. Board of Education, despite the city's decision to pursue that first case on appeal. In the present case, plaintiffs sought an injunction to halt construction of an addition to and internal renovations of the hospital operated under the auspices of the defendant Craven Regional Medical Authority and located within the corporate limits of the City of New Bern. On the day the complaint was filed, plaintiffs served a stop work order on Craven Regional Medical Authority and all contractors and subcontractors on the construction project, all of whom were also named as defendants in the instant suit. The contractors and subcontractors on site complied with the stop work order and Craven Regional Medical Authority obtained a temporary restraining order on the following day enjoining enforcement of the stop work order and construction resumed on the hospital addition. Of the named defendants, only Craven Regional Medical Authority answered plaintiffs' complaint or pursued this appeal. Consequently, use of the term "defendant" in this opinion refers only to Craven Regional Medical Authority.

As with the claim in the first case, City of New Bern v. Board of Education, plaintiffs in this case alleged that 1987 N.C.Sess.Laws ch. 934 was unconstitutional, null and void. In the original complaint filed in the instant case, plaintiffs asserted that the defendants therefore were obligated to obtain requisite building permits from and pay appropriate fees to the City of New Bern, rather than Craven County, prior to beginning construction of their project. Plaintiffs later amended the complaint to include a charge that even if chapter 934 was constitutional, a point plaintiffs did not concede, that statute did not protect defendant Craven Regional Medical Authority in this case but rather addressed Craven Regional Medical Center, an entity which plaintiffs alleged to be wholly separate. Under this additional claim, plaintiffs asserted that the Authority was responsible for obtaining permits from the city regardless of the constitutionality of chapter 934. Since defendant failed to obtain said permits from the city or to pay the requisite fees to the city, plaintiffs sought an injunction to halt construction on the hospital addition and interior renovations.

In its answer, defendant asserted the affirmative defense of abatement. Defendant also counterclaimed for damages resulting from plaintiffs' alleged negligence in issuing the stop work order when "plaintiffs knew or reasonably should have known the stop work order was void." The defendant asserted that these two cases turned on the same fundamental legal question, the constitutionality of 1987 Sess. Laws ch. 934, and that plaintiffs should not be permitted to relitigate the same issue in the present case while final resolution of the prior case was still pending. The trial court adopted the defendant's reasoning, and allowed defendant's plea in abatement on the grounds "[t]hat the subject matter of 88 CVS 1780 [City of New Bern v. Board of Education] and that of this action is substantially the same in that the essence of both actions involve the constitutionality of Chapter 934 of the 1987 Session Laws of the North Carolina General Assembly and that the parties are substantially the same[.]"

On this appeal, plaintiffs have urged this Court to find that the plea in abatement should not have been granted either (1) because the parties, subject matter, issues, and remedies sought in the two cases are not sufficiently similar, or (2) because the pendency on appeal of a prior action dismissed for lack of subject matter jurisdiction should not be grounds for abating a subsequent action brought on similar grounds. We decline to adopt either argument of plaintiffs and find that the plaintiffs' complaint in the present case was correctly dismissed.

At the outset, we must determine whether a prior action which has been dismissed in the trial court and is pending appeal in this Court is a "prior action pending" upon which a plea in abatement can be based. The pendency of a prior action between the same parties for the same cause in a state court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of the state having like jurisdiction. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860 (1952); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952). This is so because the court can dispose of the entire controversy in the prior action and in consequence the subsequent action is wholly unnecessary. By abating the second action, a multiplicity of actions is prevented. An action is pending for the purpose of abating a subsequent action between the same parties for the same cause from the time of the issuance of the summons until its final determination by judgment. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860. A plea in abatement based upon a prior action pending is an affirmative defense and is waived unless pleaded by the party relying upon the same. Id.; N.C.R.Civ.P. 8(c).

As stated, a prior action is pending until its determination by final judgment. Here, no final judgment has been entered in the prior case...