RUTHERFORD MANAGEMENT CORP. v. TOWN OF COLUMBUS
| Decision Date | 04 January 2005 |
| Docket Number | No. COA03-1242,COA03-1242 |
| Citation | 606 SE 2d 459 |
| Parties | RUTHERFORD MANAGEMENT CORP., Plaintiff, v. TOWN OF COLUMBUS, Defendant. |
| Court | North Carolina Court of Appeals |
This case not for publication
Hamrick, Bowen, Mebane, Greenway & Lloyd, LLP, by David A. Lloyd, for plaintiff-appellee.
J. Christopher Callahan for defendant-appellant.
Plaintiff Rutherford Management Corp. ("RMC") filed a declaratory judgment action against the Town of Columbus ("the Town"), seeking an order establishing that a sign at its McDonald's Restaurant did not violate the Town's sign ordinance. The Town appeals from the trial court's order granting summary judgment in RMC's favor and directing the Town to permit RMC's sign. Based on our review of the ordinance, we hold that the trial court properly determined that RMC's sign, as currently operated, does not violate the sign ordinance. Because, however, the sign possesses features that could violate the ordinance if they were made operational, wealso hold that the trial court erred in ordering that the Town permit the sign without taking those features into account.
In December 2002, RMC contracted with a sign company to replace an existing sign at its McDonald's restaurant. The original 50-square-foot illuminated sign advertised special offers; the advertising copy had to be changed manually. The new 42-square-foot automated electronic sign was described by RMC in a permit application as follows:
The proposed sign is an automated electronic reader-board. It is illuminated with LEDs, the brightness of which is adjustable. The sign can be programmed to scroll messages and/or smoothly change messages automatically. It also has other graphics and display features which can be turned on or off as necessary, and which applicant does not intend to use. The sign has no moving parts.
RMC failed to obtain a permit from the Town prior to installing the sign. On 13 February 2003, the Town sent RMC a Notice of Violation based on RMC's failure to obtain a permit for the sign. In subsequent communications, the Town also stated that the sign violated the Town's sign ordinance because it used flashing and intermittent lights to display its messages.
RMC submitted a permit application for the sign on 12 March 2003. The Town denied the request for a permit on 14 March 2003 on a single ground:
After RMC expressed a desire to appeal the permit denial, the Town's attorney, by letter dated 5 May 2003, informed RMC that the Town's sign ordinance did not contain any provision for appeal. He explained that he had been authorized to proceed with a lawsuit, but suggested that if RMC agreed to turn off the sign, the Town would agree not to exercise its right to remove the sign and would waive any per diem fines while the action was pending. The Town's attorney also, for the first time, raised the possibility that a large "M" logo on the restaurant playground might violate the sign ordinance.
RMC refused to turn off the sign and three days later, filed a complaint seeking a declaratory judgment that the sign did not violate the Town's sign ordinance, a preliminary injunction prohibiting the Town from imposing any fines or penalties during the pendency of the litigation or taking action to remove or interfere with the sign, and an order directing the Town to issue a permit for the sign. The Town filed an answer and counterclaims, seeking a declaratory judgment that the electronic sign, the "M" logo, and various figures, streamers, and banners were in violation of the Town's sign ordinance; a permanent injunction requiring RMC to remove or turn off the electronic sign and to remove additional unpermitted signs; an award of civil penalties; and a permanent injunction prohibiting RMC from erecting any other signs without first obtaining a permit. Before RMC replied to these counterclaims, the Town filed a motion for partial summary judgment. The motion did not specify the claims to which it related. After a hearing on the motion, the trial court, on 30 June 2003, granted summary judgment in favor of RMC, concluding: "Under the facts of this case the Court concludes that the sign in question comes within exemption IV(h) to the sign ordinance and therefore the sign is entitled to be permitted under the ordinance passed by the Defendant Town." The court also ordered the Town "to permit the sign in question owned by the Plaintiff." The Town filed notice of appeal from that order on 25 July 2003.
We first observe that this appeal is interlocutory. An order is interlocutory if it does not dispose fully of a case, but rather requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Because the trial court decided only whether "the sign in question" — the electronic reader board that was the subject of RMC's complaint — violated the Town's sign ordinance, the order did not dispose of the counterclaims asserted by the Town regarding the playground "M" sign and the figures, banners, and streamers. As a result, the trial court's order granting summary judgment to RMC is interlocutory. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003) ().
An interlocutory appeal is permissible only if (1) the order is final as to some claims or parties and the trial court has, pursuant to Rule 54(b) of the Rules of Civil Procedure, certified 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 in the absence of an immediate appeal. Id. In this case, the trial court did not include a Rule 54(b) certification in its order. Plaintiff's appeal is, therefore, proper only if the "substantial right" exception applies.
Rule 28(b)(4) of the Rules of Appellate Procedure requires appellants to include in their briefs "[a] statement of the grounds for appellate review," including "sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4). The Town's brief, however, fails to include a statement of grounds for appellate review or any other explanation as to why an interlocutory appeal should be allowed and we have been unable to identify any pertinent substantial right. Nonetheless, in order to promote judicial economy, we exercise our discretion to treat the Town's appeal as a petition for writ of certiorari under Rule 21(a)(1) and allow it. See Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177, disc. review denied, 329 N.C. 497, 407 S.E.2d 534 (1991).
The Town first argues "that the trial court erred in entering Summary Judgment in favor of the non moving [sic] party, i.e., Plaintiff, based upon a Motion for Summary Judgment by Defendant." Our Rules of Civil Procedure provide, however, that "[s]ummary judgment, when appropriate, may be rendered against the moving party." N.C.R. Civ. P. 56(c). See also Greenway v. N.C. Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 314, 241 S.E.2d 339, 343 (1978) ( ). This argument is without merit.
The Town also objects that the trial court's summary judgment order is flawed because it does not address the "M" logo on the McDonald's playground.1 It is well-established that "[s]ummary judgment may be entered upon less than the entire case." High Point Bank & Trust Co. v. Morgan-Schultheiss, Inc., 33 N.C. App. 406, 431, 235 S.E.2d 693, 707 (1977), cert. denied sub nom Poston v. Morgan-Schultheiss, Inc., 439 U.S. 958, 58 L. Ed. 2d 350, 99 S. Ct. 360 (1978). The trial court was not, therefore, required to address the "M" logo in its order, particularly since the Town's motion, identified as a "motion for partial summary judgment," did not specify that the "M" logo was encompassed by that motion. SeeN.C.R. Civ. P. 7(b)(1) (). In addition, the Town does not include any argument in its brief as to why the evidence before the trial court was sufficient to warrant summary judgment in its favor with respect to the "M" logo.2 We, therefore, decline to address the "M" logo on appeal in the first instance.
The Town's primary contention on appeal is that the trial court erred in construing the Town's sign ordinance as allowing RMC's electronic sign. The parties do not dispute the material facts, but rather debate the proper construction of the Town's sign ordinance. Questions involving the proper interpretation of a sign ordinance are questions of law that we review de novo. Morris Communications Corp. v. Bd. of Adjustment for the City of Gastonia, 159 N.C. App. 598, 600, 583 S.E.2d 419, 421, appeal dismissed, 357 N.C. 658, 590 S.E.2d 269 (2003).
Municipal ordinances are construed according to the same rules as statutes enacted by the legislature. Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of the Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980). See also Cogdell v. Taylor, 264 N.C. 424, 428, 142 S.E.2d 36, 39 (1965) (...
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