Onslow County v. Moore, No. COA97-32
Citation | 129 NC App. 376,499 S.E.2d 780 |
Decision Date | 05 May 1998 |
Docket Number | No. COA97-35., No. COA97-32, No. COA97-33 |
Parties | ONSLOW COUNTY, Appellee-Plaintiff, v. Gene MOORE, Appellant-Defendant. Kimberly McKILLOP, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant. Patricia TREANTS, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant. |
Court | Court of Appeal of North Carolina (US) |
Jeffrey S. Miller, Jacksonville, for appellants Moore, McKillop and Treants.
Shipman & Associates, L.L.P. by Gary K. Shipman, Carl W. Thurman, III, and C. Wes Hodges, II, Wilmington, for appellee Onslow County.
In addition, Article II of the Ordinance stated that "[f]or the purpose of promoting the health, safety, morals and general welfare of the citizenry of Onslow County, this Ordinance is adopted by the Board of Commissioners to regulate adult and sexually oriented businesses, as hereby defined, located in Onslow County."
After being notified of the necessity of compliance with the ordinance, McKillop and Treants filed complaints on 20 September 1994 seeking declarations that the ordinance violated the North Carolina General Statutes and the North Carolina Constitution. Both complaints requested that the trial court enter judgments declaring the ordinance invalid and unconstitutional and enjoining the County from enforcing the ordinance. In response to the complaints, the County filed answers and counterclaims. Alleging that McKillop and Treants operated businesses in violation of the ordinance, the County requested that the complaints be dismissed and that McKillop and Treants be enjoined from operating their businesses as nonconforming adult and sexually oriented businesses. In response to the County's answers and counterclaims, McKillop and Treants alleged the ordinance violated the United States Constitution. On 3 July 1996, the trial court entered judgments dismissing the complaints with prejudice and enjoining McKillop and Treants from operating their businesses in any building located within 1000 feet of a residence, house of worship, or public school or playground. However, the trial court specifically found and concluded that the ordinance was partially preempted by N.C.Gen. Stat. § 14-202.11 (1993), which prohibits any building from containing more than one adult establishment.
On 5 December 1995, the County filed an action against Moore, pursuant to the ordinance, seeking a mandatory and/or prohibitory preliminary and permanent injunction and order of abatement commanding Moore to comply with the provisions of the ordinance. On 18 January 1996, nunc pro tunc 15 December 1995, the trial court found that Moore operated a sexually oriented business in violation of the ordinance and entered a preliminary injunction commanding Moore to bring the business in compliance with the ordinance and prohibiting him from violating the ordinance. This order was filed with the Onslow County Clerk of Court on 26 March 1996. Moore gave notice of appeal from the entry of the preliminary injunction on 18 April 1996. On 3 July 1996, the trial court entered an order finding that Moore willfully failed to comply with the provisions of the injunction and holding him in contempt. On 3 December 1996, this Court, in an unpublished opinion (COA96-828), dismissed Moore's appeal of the preliminary injunction as interlocutory.
McKillop and Treants appeal the judgments dismissing their complaints with prejudice and permanently enjoining them from operating their businesses in buildings located within 1000 feet of a residence, house of worship, or public school or playground. The County appeals from the portion of these judgments declaring the ordinance partially preempted by N.C.Gen.Stat. § 14-202.11. Moore appeals the 3 July 1996 order finding him in contempt of the preliminary injunction issued 18 January 1996, nunc pro tunc 15 December 1995.
In their first two assignments of error, McKillop and Treants contend the trial court erred by denying their motions to dismiss and by denying their motions to amend their replies to the County's counterclaims. However, McKillop and Treants only gave notice of appeal from the trial court's judgments entered 3 July 1996 dismissing their complaints and enjoining them from violating the ordinance. Our Rules of Appellate Procedure require that a party entitled to appeal from a judgment or order "may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule." N.C.R.App.P. 3(a). The notice of appeal "shall designate the judgment or order from which appeal is taken...." N.C.R.App.P. 3(d). "Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed." Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C.App. 188, 189, 394 S.E.2d 683, 683,disc. review denied and appeal dismissed, 327 N.C. 633, 399 S.E.2d 326 (1990).
Id. (emphasis added). It is apparent that Allan & Warmbold discusses the appealability issue with respect to the time within which an appeal must be filed as set forth in N.C.R.App.P. 3(c), and not whether a notice of appeal must be filed. The record on appeal and briefs in Allan & Warmbold reflect that the precise issue before this Court was whether notice of appeal from the resale order had to be given within ten days (now 30 days) following signing and entry of the resale order. In fact, the appeal from the resale order was filed within 10 days of the entry of the final order of confirmation. We therefore believe Allan & Warmbold is inapposite to the instant case.
We do, however, find the case of Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C.App. 14, 411 S.E.2d 645 (1992), instructive. In Rite Color Chemical Co., we held that where defendant gave notice of appeal from the trial court's order on unconscionability and directed verdict, and from a subsequent judgment, the notice of appeal did not give this Court jurisdiction to review the trial court's orders denying defendant's motions to amend its pleadings. Id. at 17, 411 S.E.2d at 647. Because McKillop and Treants failed to file notices of appeal from the trial court's denials of their motions to dismiss and to amend their replies to the County's counterclaims, we need not address those issues.
McKillop and Treants next contend the trial court erred by issuing an injunction which orders them to obey an ordinance that violates Chapter 153 of the General Statutes, is preempted by state law, and violates their federal and state constitutional rights. However, for the reasons set forth below, we conclude the trial court properly enjoined McKillop and Treants from operating their businesses within 1000 feet of a residence, house of worship, or public school or playground.
McKillop and Treants argue that the...
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