Craig v. Town of Huntersville
| Decision Date | 04 April 2023 |
| Docket Number | COA22-142 |
| Parties | CLAUDIA T. CRAIG and PAMELA L. YOUNG, Plaintiffs, v. TOWN OF HUNTERSVILLE; EPCON KINNAMON PARK, LLC; and THE COURTYARDS AT KINNAMON PARK CONDOMINIUM ASSOCIATION, INC., Defendants. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 24 January 2023.
Appeal by plaintiffs from orders entered 19 July 2021 by Judge Lisa C. Bell in Mecklenburg County, No. 19CVS16070 Superior Court.
Murray Law Firm PLLC, by David William Murray, for plaintiffs-appellants.
Johnston Allison &Hord, PA, by B. David Carson and Kathleen D.B. Burchette, for defendant-appellee Epcon Kinnamon Park, LLC.
Cranfill Sumner, LLP, by Patrick H. Flanagan and Steven A Bader, for defendant-appellee Town of Huntersville.
Burr &Foreman, LLP, by Henrietta Golding, Pro Hac Vice, and Brooke R. Watson, Pro Hac Vice, for defendant-appellee The Courtyards at Kinnamon Park Condominium Association, Inc., no brief.
Plaintiffs Claudia T. Craig and Pamela L. Young own three adjacent tax parcels (the "Craig Property") in Huntersville North Carolina. This action concerns a gravel road easement, which plaintiffs use to access their properties. Defendant Town of Huntersville (the "Town") is a municipal corporation organized under the laws of North Carolina. Defendant Epcon Kinnamon Park, LLC, ("Epcon") has development rights and owns portions of parcels located across from the Craig Property, and the property upon which the disputed portion of the gravel road easement is located. Defendant The Courtyards at Kinnamon Park Condominium Association, Inc. (the "Association") is alleged to be responsible for the maintenance of the area along where the gravel road easement is located.
Plaintiffs appeal from two Orders, one granting the Town's motion to dismiss and the other granting in part Epcon's motions to dismiss. Upon review, this Court has jurisdiction to review the first Order only to the extent that it involves the issue of sovereign immunity. Appeal of the other order is interlocutory and from which there is no right of immediate appeal; we accordingly dismiss it. We thus affirm in part and dismiss in part.
The real property at issue was originally owned by C.W. Kinnamon and Johnsie Kinnamon. Over time, the Kinnamons divided the land and sold parcels to different persons and entities. In 1968, the Kinnamons sold three parcels which make up the Craig Property to Donald and Harriet Hill. In the conveying deed, the Kinnamons granted the Hills an ingress/egress easement in an adjacent gravel road.
The Hills subdivided their land into the existing three parcels. Plaintiffs bought these parcels from the Hills in three separate sales in 1992, 1995, and 2000.[1]Since the first sale in 1992, plaintiffs have used the gravel road easement to access and leave the Craig Property. The easement has also been used by their visitors, service vendors, and emergency personnel.
In 2015, Epcon bought property located east of plaintiffs' parcels. Epcon bought this property from two sellers, and the purchase included the gravel road. Epcon then obtained a rezoning of the property to allow for construction of The Courtyards at Kinnamon Park ("CKP"), an active adult community.
Epcon began construction of CKP in or around 2016. As part of the plan approved by the Town in 2015, Epcon was to construct a new public street, which would cross the gravel road easement and connect to a preexisting Gilead Grove Road to allow access to CKP from the west.
Epcon completed this project in November 2016. On or about 22 November 2016, Epcon offered the Gilead Grove Road extension for dedication to the Town. To date, the Town has not accepted the dedication.
B.
Plaintiffs filed their Complaint and issued Summonses on 16 August 2019 alleging claims for declaratory judgment, substantial interference with easement, violation of easement, private nuisance, trespass, and permanent injunction. Defendant Association filed an answer on 4 November 2019. Defendants Epcon and the Town each filed motions to dismiss in lieu of answering on 4 November 2019.
On 4 February 2020, the trial court held a hearing on the motions to dismiss. On 15 February 2021, the trial court advised the parties of its decision to grant the Town's motion in full and grant Epcon's motion in part. In response, plaintiff filed a motion for reconsideration on 25 February 2021 and requested a hearing under the local rules; however, the trial court did not conduct a hearing.
Thereafter, on 19 July 2021, the trial court entered two orders subject to the instant appeal: (i) an order granting the Town's motion to dismiss on the sole claim against it for declaratory judgment ("Town Order"); and (ii) an order granting Epcon's motion to dismiss, in part, on plaintiff's claims for declaratory judgment, permanent injunction, and trespass ("Epcon Order"). The Epcon Order limited plaintiffs to proceed in pursuit of monetary damages only for the claims of violation of easement rights and private nuisance.
Plaintiffs timely filed Notice of Appeal on 17 August 2021. The trial court entered an Order entering stay pending appeal on 14 October 2021.
We must first examine whether this Court has jurisdiction over this interlocutory appeal. "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citation omitted).
"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (citation omitted). This rule is "designed 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." Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980) (citation omitted). "There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Veazey, 231 N.C. at 363, 57 S.E.2d at 382.
An order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is reviewable only under two sets of circumstances. First, Rule 54(b) specifically provides that if the judge entering the order determines that there is "no just reason for delay" and includes a statement to that effect in the judgment, the judgment will be final and immediately appealable. G.S. 1A-1, Rule 54(b). Second, if the interlocutory order "affects a substantial right" of the party appealing or "in effect determines the action and prevents a judgment from which an appeal might be taken" the party has a right to appeal under G.S. 1-277 or G.S. 7A-27.
Cunningham v. Brown, 51 N.C.App. 264, 266, 276 S.E.2d 718, 721 (1981). "Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994).
In this case, the record does not contain a Rule 54(b) certification; plaintiffs must demonstrate a substantial right to obtain immediate appellate review. "A right is substantial if it will be lost or irremediably and adversely affected if the trial court's order is not reviewed before a final judgment." Nello L. Teer Co. v. Jones Bros., 182 N.C.App. 300, 303, 641 S.E.2d 832, 835 (2007) (citation omitted).
"The 'substantial right' test for appealability is more easily stated than applied." Bailey, 301 N.C. at 210, 270 S.E.2d at 434. "We take a 'restrictive' view of the substantial right exception and adopt a case-by-case approach." Wells Fargo Bank, Nat'l Ass'n v. Corneal, 238 N.C.App. 192, 194, 767 S.E.2d 374, 376 (2014) (citation omitted). "It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). "Essentially a two-part test has developed - the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the party] if not corrected before appeal from final judgment." Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation omitted).
"The appellant bears the burden of demonstrating that the order is appealable despite its interlocutory nature." Wells Fargo Bank, 238 N.C.App. at 194, 767 S.E.2d at 376 (citation omitted). This requirement is codified in Appellate Rule 28(b)(4), which requires the appellant to include in their brief "a statement of the grounds for appellate review" that N.C R. App. P. 28(b)(4) (2022). "It is not the duty of this Court to construct arguments for or find support for an appellant's right to appeal; the appellant must provide...
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