Opinion
No. COA15-1115
04-19-2016
MICHAEL LESTER AND PEGGY LOUANN BOWEN, Plaintiffs, v. RACHEL GALAMBOS, Defendant.
Farris & Farris, PA, by Rhyan A. Breen, for the Plaintiffs-Appellants. Michael K. Perry, Attorney, P.A., by Michael K. Perry, for the Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Franklin County, No. 14 CVS 804 Appeal by Plaintiffs from order entered 1 July 2015 by Judge Carl R. Fox in Franklin County Superior Court. Heard in the Court of Appeals 9 February 2016. Farris & Farris, PA, by Rhyan A. Breen, for the Plaintiffs-Appellants. Michael K. Perry, Attorney, P.A., by Michael K. Perry, for the Defendant-Appellee. DILLON, Judge.
I. Background
Michael Lester and Peggy L. Bowen ("Plaintiffs") and Rachel Galambos ("Defendant") are neighbors. Plaintiffs instituted a declaratory judgment action to determine the rights of the parties to a portion of Plaintiffs' land which borders Defendant's property. Defendant counterclaimed for: (1) declaratory judgment, asserting that she holds an easement for ingress and egress over the portion of land in dispute, and (2) damages for private nuisance, asserting that Plaintiffs have parked vehicles in the easement, thereby blocking her ingress and egress over said easement. Both parties filed motions for summary judgment.
At the summary judgment hearing, the trial court granted Defendant's motion for summary judgment, ruling that an easement existed over the portion of land in dispute. The trial court specifically noted that it made no ruling with regard to Defendant's counterclaim seeking damages for her private nuisance claim, noting that neither party moved for summary judgment on that claim nor addressed it in their arguments at the hearing. Plaintiffs appealed.
II. Analysis
Defendant has filed a motion to dismiss Plaintiffs' appeal as interlocutory. Plaintiffs' appeal is interlocutory because the order being appealed is not dispositive as to Defendant's counterclaim for private nuisance. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) ("'A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.'"). Plaintiffs assert that the order deprived them of a substantial right and that they should therefore be allowed to appeal before final judgment is entered.
Our Supreme Court has articulated a two-part test to determine whether an interlocutory order is immediately appealable where an appellant claims to have been deprived of a substantial right: (1) "the right itself must be substantial[,]" and (2) "the deprivation of that . . . right must potentially work injury . . . if not corrected before appeal from final judgment." Frost v. Mazda Motors of Am., Inc., 353 N.C. 188, 192, 540 S.E.2d 324, 327 (2000) (internal marks omitted).
Here, in order to determine whether we have jurisdiction over this appeal, "we must discern the precise nature of the right the appellant claims as substantial." Neusoft Medical Systems, USA, Inc. v. Neuisys, LCC, ___ N.C. App. ___, ___, 774 S.E.2d 851, 855 (2015). The burden is on the appellant to demonstrate that the order "deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." See Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254.
Plaintiffs cite N.C. Dep't of Transp. v. Stagecoach Village for the proposition that "interlocutory orders concerning title [to land] . . . must be immediately appealed as 'vital preliminary issues' involving substantial rights adversely affected." N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005) (citations omitted). We note, however, that Stagecoach Village and the cases on which it bases its analysis "deal solely with issues of condemnation and the involuntary taking of a private citizen's property by the State of North Carolina." FMB, Inc. v. Creech, 198 N.C. App. 177, 180, 679 S.E.2d 410, 412 (2009). Outside of the condemnation context, our Supreme Court has instructed that the fact that an interlocutory order may affect title to land does not automatically render an interlocutory appeal permissible. See Stanford v. Paris, 364 N.C. 306, 311-12, 698 S.E.2d 37, 41 (2010).
Because this case does not involve condemnation, the analysis used in Stagecoach Village is inapplicable. The circumstances in which we have extended the substantial right exception found in Stagecoach Village outside the area of condemnation are very limited. See Phoenix Ltd. Partnership of Raleigh v. Simpson, 201 N.C. App. 493, 499, 688 S.E.2d 717, 721-22 (2009) (substantial right affected where trial court ordered defendants to convey property to plaintiff); Bodie Island Beach Club Ass'n, Inc. v. Wray, 215 N.C. App. 283, 287-88, 716 S.E.2d 67, 72 (2011) (substantial right affected in action to set aside a deed on theories of fraud and undue influence).
In this case, there is no dispute as to who holds legal title to the property in question. The sole issue is the existence of an easement on the property. We do not believe that the trial court's finding that Defendant holds an easement on Plaintiffs' property affects title in the same manner as in Phoenix Ltd. and Bodie Island.
While the determination that an easement exists may have affected a substantial right of the Plaintiffs in a condemnation action, see Stagecoach Village, 360 N.C. at 47-48, 619 S.E.2d at 496, this exception has not been extended outside the realm of condemnation cases. Specifically, Plaintiffs may still continue using their land subject to the easement. Assuming arguendo that Plaintiffs are correct on the merits of their appeal, the only right Plaintiffs lose by our failure to consider their interlocutory appeal at this time is their right to use the easement land exclusively, a right which would not be lost forever.
III. Conclusion
We hold that the interlocutory order does not affect a substantial right of the Plaintiffs. Accordingly, Plaintiffs' appeal is dismissed as interlocutory.
DISMISSED.
Judges BRYANT and ZACHARY concur.
Report per Rule 30(e).