Letendre v. Currituck Cnty.

• Decision Date: 18 September 2018
• Docket Number: No. COA18-163,COA18-163
• Citation: 817 S.E.2d 920 (Table)
• Parties: Elizabeth E. LETENDRE, Plaintiff, v. CURRITUCK COUNTY, North Carolina, Defendant.
• Court: North Carolina Court of Appeals

817 S.E.2d 920 (Table)

Elizabeth E. LETENDRE, Plaintiff,

v.CURRITUCK COUNTY, North Carolina, Defendant.

No. COA18-163

Court of Appeals of North Carolina.

Filed: September 18, 2018

George B. Currin, Raleigh, for proposed intervenor-appellants.

Parker Poe Adams & Bernstein LLP, Raleigh, by Jonathan E. Hall and Michael J. Crook, for plaintiff-appellee.

The Brough Law Firm, PLLC, by G. Nicholas Herman and Donald I. McRee, Jr., for defendant.

STROUD, Judge.

Michael and Marie Long, proposed intervenors, appeal the trial court’s order denying their motion to intervene. Because defendant Currituck County does not adequately represent the interests of the Longs, we reverse and remand.

I. Background

The background of this case may be found in two prior opinions from this Court. See Letendre v. Currituck County. ––– N.C. App. ––––, ––– S.E.2d –––– (May 15, 2018) (COA17-1108) ("Letendre I "), temporary stay allowed , ––– N.C. ––––, 814 S.E.2d 111 (2018) ; Long v. Currituck County , ––– N.C. App. ––––, 787 S.E.2d 835, disc. review dismissed , 369 N.C. 74, 793 S.E.2d 222, stay dissolved, writ of supersedeas denied, disc. review denied , 369 N.C. 74, 793 S.E.2d 232 (2016). In Long , Michael and Marie Long ("Longs"), proposed intervenors herein, appealed two orders from the trial court which upheld the Currituck County Board of Adjustment’s decision to allow plaintiff Elizabeth Letendre to build a 15,000 square foot project comprised of three buildings on her property adjacent to the Longs’ property. See Long , ––– N.C. App. at ––––, 787 S.E.2d at 836. The primary question before this Court was whether Currituck County had properly classified plaintiff’s proposed project as a "Single Family Dwelling" under the Currituck County Uniform Development Ordinance ("UDO"); this Court determined the project was not a Single Family Dwelling as defined by the UDO and reversed and remanded the trial court’s order, concluding:

this project includes multiple "buildings," none of which are "accessory structures;" see UDO § 10.34. Any determination that this project fits within the definition of Single Family Dwelling requires disregarding the structural elements of the definition, including the singular "a" at the beginning of the definition to describe "building" and allowing multiple attached "buildings," none of which are accessory structures, to be treated as a Single Family Dwelling in clear contravention of the UDO. UDO § 10.51. The project does not fit within the plain language of the definition of Single Family Dwelling, and thus is not appropriate in the SF District. See UDO §§ 3.4.4; 10.51. We therefore must reverse the Superior Court order and remand for further proceedings consistent with this opinion.

Id. at ––––, 787 S.E.2d at 841.

While the appeal was pending in Long , plaintiff obtained a building permit and began construction of her project. See Letendre I , ––– N.C. App. at ––––, ––– S.E.2d at ––––, *10 (2018). After this Court issued its opinion in Long , defendant Currituck County issued a Stop Work Order and Notice of Violation in compliance with this Court’s opinion in Long . Id. at ––––, ––– S.E.2d at ––––, *1-2. On 27 March 2017, plaintiff Letendre filed this lawsuit against defendant Currituck County "seeking a declaratory judgment, preliminary injunction, permanent injunction, monetary damages, and attorney fees." Id. at ––––, ––– S.E.2d at ––––, *2.¹ Plaintiff Letendre sought to enjoin defendant Currituck County from enforcing its UDO so that she could complete and use the project, or in the alternative, monetary damages for inverse condemnation of her property. Id. at ––––, ––– S.E.2d at ––––, *2, 56. On 25 May 2017, the Longs filed a motion to intervene in this case, plaintiff Letendre’s action against defendant Currituck County, and on 18 September 2017, they filed an amended motion. On 9 October 2017, the trial court denied the motion "in its original form and as amended[.]" The Longs appeal.

II. Interlocutory Order

Proposed intervenors acknowledge that their appeal is interlocutory since it is not a final judgment:

An order is either interlocutory or the final determination of the rights of the parties. 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..... As a general proposition, only final judgments, as opposed to interlocutory orders, may be appealed to the appellate courts. Appeals from interlocutory orders are only available in exceptional cases. Interlocutory orders are, however, subject to appellate review:

if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C. Gen. Stat. § 1A–1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.

The appealing party bears the burden of demonstrating that the order from which he or she seeks to appeal is appealable despite its interlocutory nature.

Hamilton v. Mortg. Info. Servs., Inc. , 212 N.C. App. 73, 76–77, 711 S.E.2d 185, 188–89 (2011) (citations and quotation marks omitted).

The order here is not certified, so proposed intervenors "bear[ ] the burden of demonstrating that" "the order deprives ... [them] of a substantial right that would be lost unless immediately reviewed." Id. at 77, 711 S.E.2d at 189.

The test for whether a substantial right has been affected consists of two parts: (1) the right itself must be substantial; and (2) the deprivation of that substantial right must potentially work injury to the appealing party if not corrected before appeal from final judgment. Whether a substantial right is affected is determined on a case-by-case basis and should be strictly construed.

Builders Mut. v. Meeting Street Builders , ––– N.C. App. ––––, ––––, 736 S.E.2d 197, 199 (2012) (citations, quotation marks, and brackets omitted).

The Longs contend they have a substantial right based upon the effects of plaintiff Letendre’s project on their adjacent real property, and, if they are not allowed to intervene, the resolution of this case may cause injury to their rights as they would be unable to appeal or challenge any final order or resolution if they are are not parties. The Longs allege that if plaintiff Letendre is successful in this case, "the Letendre project will cause adverse secondary effects to the Longs’ adjacent property, including but not limited to a diminution of the value of their property." In Long , defendant Currituck County had approved plaintiff Letendre’s project, but the Longs challenged this approval. See generally Long , ––– N.C. App. ––––, 787 S.E.2d 835. In the Long case, plaintiff Letendre and defendant Currituck County were on the same side of the case, opposed to the Longs. See generally id. Only after this Court’s opinion in Long did defendant Currituck County take the same position as the Longs. See Letendre I , ––– N.C. App. at ––––, ––– S.E.2d at ––––, *2.

In this case, plaintiff Letendre is a private citizen contending that defendant Currituck County has violated her rights. See Letendre I, ––– N.C. App. ––––, ––– S.E.2d ––––. Plaintiff Letendre is seeking not only monetary damages from defendant Currituck County, but she also seeks an injunction to prevent defendant Currituck County from enforcing Long and to "deem" her project to be a Single Family Dwelling so it may be constructed and occupied within the Single Family Residential Outer Banks Remote District. See generally id. ––– N.C. App. ––––, ––– S.E.2d ––––. The trial court essentially recognized the Longs’ substantial right, even in its order denying intervention, since the trial court determined the Longs have "a direct and immediate interest relating to the property or transaction" and "denying intervention would result in a practical impairment of the protection of that interest[.]" Harvey Fertilizer & Gas Co. v. Pitt Cty. , 153 N.C. App. 81, 85, 568 S.E.2d 923, 926 (2002). Because the Longs have a substantial interest in ensuring that both plaintiff Letendre and defendant Currituck County comply with Long and because plaintiff Letendre seeks, as a practical matter, to overturn Long in this case, we conclude the Longs have demonstrated a substantial right as their property "right itself ... [is] substantial; and ... the deprivation of that substantial right [would] potentially work injury to ... [them] if not corrected before appeal from final judgment." Builders Mut. , ––– N.C. App. at ––––, 736 S.E.2d at 199. We will therefore consider the Longs’ appeal.

III. Motion to Intervene

The Longs first contend that the trial court erred in denying their "motion to intervene as a matter of right under N.C. R. Civ. P. 24(a) [.]" (Original in all caps.)

N.C. Gen. Stat. § 1A–1, Rule 24(a) provides that a third party may intervene as a matter of right:

(1) When a statute confers an unconditional right to intervene; or

(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

N.C.G.S. § 1A–1, Rule 24(a) (2001). To satisfy the requirements of Rule 24(a)(2), our Supreme Court has recently stated that an intervening party must show that (1) it has a direct and immediate interest relating to the property or transaction, (2) denying intervention would result in a practical impairment of the protection of that interest, and (3) there is inadequate representation of that interest by existing parties.

Harvey Fertilizer & Gas Co. v. Pitt Cty. , 153 N.C. App. 81, 85–86, 568 S.E.2d 923, 926 (2002) (citations and quotation marks omitted). The Longs do not contend they have "an unconditional right to...