Opinion
No. COA11–1493.
2012-06-5
Allen Toby HEDGEPETH as Trustee Under the Allen Toby Hedgepeth Declaration of Trust, Dated May 30, 2001, Plaintiff, v. Pamela J. BELL, Defendant.
Vandeventer Black LLP, by Norman W. Shearin and Ashley P. Holmes, for Plaintiff–Appellant. Nicholls & Crampton, P.A., by W. Sidney Aldridge, for Defendant–Appellee.
Appeal by Plaintiff from order entered 20 June 2011, by Judge Cy A. Grant in Currituck County Superior Court. Heard in the Court of Appeals 2 April 2012. Vandeventer Black LLP, by Norman W. Shearin and Ashley P. Holmes, for Plaintiff–Appellant. Nicholls & Crampton, P.A., by W. Sidney Aldridge, for Defendant–Appellee.
BEASLEY, Judge.
Allen Toby Hedgepeth as trustee under the Allen Toby appeals the trial court's dismissal of his complaint. For the following reasons we dismiss.
Plaintiff commenced this action by filing a complaint against Pamela J. Bell (Defendant) on 7 February 2011. Plaintiff sought a declaratory judgment as well as an injunction against Defendant. Plaintiff alleged he was the owner of the “Parker Tract,” a parcel of land located in Point Harbor, Poplar Branch Township in Currituck County. Defendant is the owner of a lot in the Parker Landing Subdivision. Also located in the subdivision is Parker Landing Drive which affords access to Defendant's lot as well as other common areas in the subdivision. Plaintiff further alleged that a portion of Parking Landing Drive, which he admits was conveyed to Parker's Landing Property Owners Association, Inc. (POA), overlaps the south boundary of the Parker Tract. Plaintiff also alleged that Parker's Landing Drive crosses over his easement and he has exclusive rights to this easement. Although the complaint alleges that every lot owner in Parker's Landing has rights to Parker Landing Drive, the complaint only seeks relief against Defendant.
On 14 April 2011, Defendant filed an answer and motion to dismiss. On 27 May 2011, Defendant moved for judgment on the pleadings and on 20 June 2011, the trial court filed an order granting Defendant's motion and dismissing Plaintiff's complaint. Plaintiff gave timely notice of appeal on 25 July 2011.
Before addressing the merits, we must address Plaintiff's assertion that this appeal is interlocutory. “A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E .2d 377, 381 (1950). “Any order resolving fewer than all of the claims between the parties is interlocutory.” McCutchen v. McCutchen, 360 N.C. 280, 282, 624 S.E.2d 620, 622–23 (2006) (citation omitted). In this case, Plaintiff argues that the trial court's order was interlocutory, but affects a substantial right. The appeal is not interlocutory where the trial court dismissed the entire complaint without prejudice, and there is nothing in the record to suggest that there are any causes pending in the trial court.
The sole issue on appeal is whether the trial court erred by dismissing Plaintiff's complaint for failure to join necessary parties.
“It is an elementary principle of appellate review that the appellant has the burden not only to show error, but also to show that the alleged error was prejudicial and amounted to the denial of some substantial right.” Brown v. Boney, 41 N.C.App. 636, 647, 255 S.E.2d 784, 790 (1979) (citing Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967)). In this case, the trial court dismissed Plaintiff's complaint without prejudice. Plaintiff fails to argue, and we fail to see how Plaintiff is prejudiced by the trial court's dismissal. “[W]hen the trial court specifically orders the dismissal to be without prejudice, as in this case, the dismissal is not an adjudication on the merits [.]” Melton v. Stamm, 138 N.C.App. 314, 315, 530 S.E.2d 622, 624 (2000). Because the trial court did not adjudicate this case on the merits, but instead dismissed without prejudice for a procedural error, we hold that Plaintiff has not established necessary prejudice. Accordingly, Plaintiff's appeal is dismissed.
Dismissed. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).