Opinion
No. COA10-992
Filed 1 March 2011 This case not for publication
Appeal by plaintiffs from judgment entered 17 May 2010 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 27 January 2011.
Prince, Youngblood Massagee, PLLC, by Sharon B. Alexander, for plaintiff appellants. Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Albert L. Sneed, Jr., and Lindsay P. Thompson, for defendant appellee.
Henderson County No. 09 CVS 938.
Plaintiffs appeal from an order granting defendant's motion for partial summary judgment and dismissing plaintiffs' claim. We dismiss this appeal as interlocutory.
I. Background
The relevant facts and procedural background are as follows: Plaintiffs Mark White and Tanis T. Duffie ("plaintiffs") are the owners of lots 48 and 49 located in a subdivision known as Jackson Farms Subdivision in Henderson County, North Carolina. A subdivision plat depicting the Jackson Farms Subdivision was recorded on 19 June 1950 in Plat Book 4, Page 102, Henderson County Registry, now Plat Cabinet B, Slide 342A. The Jackson Farms Subdivision plat outlines various lots and road rights-of-way in the subdivision, including the location of a forty-foot road extending the length of the subdivision from Old Spartanburg Highway to Spartanburg Highway/U.S. 176.
Beginning in April 2007, the City Council of Hendersonville (the "City Council") began to consider the opening of the forty-foot road depicted in the Jackson Farms Subdivision plat as part of a redevelopment plan titled the Southside Transportation Study. The Southside Transportation Study was adopted by the City Council on 5 October 2006 with the goal of improving connectivity in the Southside area. As part of the redevelopment plan, a connector street was proposed between Old Spartanburg Highway and Spartanburg Highway/U.S. 176, where the forty-foot road in Jackson Farms Subdivision already existed.
Defendant Northwest Property Group-Hendersonville #1, LLC ("defendant"), proposed construction of a grocery store, a retail strip building, and a retail drug store in the vicinity of the Jackson Farms Subdivision. The City Council discussed the new construction project at its 5 April 2007 meeting. At that meeting, the City Manager stated that defendant's construction project presented an opportunity to implement the Southside Transportation Study, and that the City desired to work with defendant to build the connector street between Old Spartanburg Highway and Spartanburg Highway/U.S. 176. The City Council agreed by consensus to proceed with the project.
At its 3 May 2007 meeting, the City Council again discussed defendant's construction project in connection with defendant's application for rezoning. At the conclusion of the hearing on the proposed rezoning of defendant's property, the City Council unanimously adopted an ordinance amending the official zoning map of the City of Hendersonville. The new zoning ordinance incorporated a map depicting defendant's property, including the forty-foot road in Jackson Farms Subdivision as the connector street between Old Spartanburg Highway and Spartanburg Highway/U.S. 176.
At its 8 November 2007 meeting, the City Council considered and approved a contractual agreement with defendant for the construction of the roadway between Old Spartanburg Highway and Spartanburg Highway/U.S. 176 where the forty-foot road through Jackson Farms Subdivision existed. The contract required defendant to undertake and complete construction of the roadway pursuant to North Carolina Department of Transportation ("NCDOT") standards. The contract also established a cost-sharing plan under which the City would fund approximately sixty-six percent of the cost of the construction of the new road. The contract became effective as of 6 March 2008 upon signature by both the City and defendant.
Defendant obtained a permit from NCDOT for the road construction. The NCDOT permit contained explicit drawings specifying the grade of the road to be built. In June 2008, defendant began to make the improvements to the road pursuant to NCDOT permit specifications. As part of this construction, defendant re-graded the existing road to a higher elevation and erected a four-foot wall along the boundary of plaintiffs' property in Jackson Farms Subdivision.
As a result of the improvements made by defendant to the forty-foot road in Jackson Farms Subdivision, plaintiffs are unable to access their property from that roadway and cannot drive onto the existing driveway leading to the garage on their property. Plaintiffs filed a complaint on 26 May 2009 requesting injunctive relief and compensation for damages to plaintiffs' property caused by defendant's construction activities. Defendant filed an answer on 22 July 2009 raising the defense of governmental immunity and asserted a counterclaim for breach of contract against plaintiff Mark White as to rent owed for leased and occupied retail space.
On 23 March 2010, plaintiffs also filed a separate complaint against the City of Hendersonville alleging that the damages to their property as a result of defendant's roadway construction constituted a taking of plaintiffs' property. In that complaint, plaintiffs include defendant's assertion of governmental immunity and the contractual agreement between defendant and the City as support for their allegations of a taking by the City. Shortly thereafter, on 31 March 2010, defendant filed a motion for partial summary judgment in the present case based on the defense of governmental immunity. Subsequently, on 5 April 2010, plaintiffs filed a motion to consolidate the two actions against defendant and the City, citing common issues of fact as the basis.
By judgment entered 17 May 2010, the trial court granted defendant's motion for partial summary judgment and dismissed plaintiffs' claim in its entirety. The summary judgment order did not address defendant's counterclaim for breach of contract, which was preserved for trial. The trial court did not rule on plaintiffs' motion to consolidate the two actions, and plaintiffs' case against the City is still pending. Plaintiffs appeal.
II. Interlocutory Appeals
"Where, as here, an order entered by the trial court does not dispose of the entire controversy between all parties, it is interlocutory." Atkins v. Peek, 193 N.C. App. 606, 609, 668 S.E.2d 63, 65 (2008). Because the trial court's order dismissed plaintiffs' claim against defendant but did not address the counterclaim raised by defendant, the order is interlocutory. Murphy v. Coastal Physician Group, Inc., 139 N.C. App. 290, 293, 533 S.E.2d 817, 819 (2000), appeal withdrawn, 353 N.C. 378, 547 S.E.2d 814 (2001); T'ai Co. v. Market Square Ltd. P'ship, 92 N.C. App. 234, 235, 373 S.E.2d 885, 886 (1988).
"Generally, there is no right of immediate appeal from an interlocutory order." Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998); see N.C. Gen. Stat. § 1A-1, Rule 54(b) (2009). There are two circumstances, however, in which a party may appeal an interlocutory order. Peek, 193 N.C. App. at 609, 668 S.E.2d at 65. "The first exception applies where the order represents a `"final judgment as to one or more but fewer than all of the claims or parties" and the trial court certifies in the judgment that there is no just reason to delay the appeal.'" Id. (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (citation omitted)). This exception does not apply in the present case, as the trial court did not certify the order for appeal pursuant to Rule 54(b).
Second, "a party may appeal an interlocutory order where delaying the appeal will irreparably impair a substantial right of the party." Id. Plaintiffs contend that the right to avoid separate trials with potentially conflicting verdicts is a substantial right which warrants this appeal. Plaintiffs assert that if they are precluded from immediately appealing the judgment dismissing their claims in the present case, they are at risk of suffering two trials and obtaining contradictory verdicts on the same factual issues because the issues raised in the complaint against defendant in the present case and those presented in the plaintiffs' separate action pending against the City are identical. Plaintiffs' application of the law is misguided.
Our Supreme Court has agreed that "`[t]he right to avoid one trial on . . . disputed [factual] issues is not normally a substantial right that would allow an interlocutory appeal, while the right to avoid the possibility of two trials on the same issues can be such a substantial right.'" Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982) (citation omitted). This general proposition is based on the following rationale:
[W]hen common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.
Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491 (1989) (internal quotation marks and citation omitted). Thus, our courts have found "a substantial right would be lost absent immediate review when the dismissed claims and the remaining claims are dependent upon the same set of facts or have overlapping factual issues." Murphy, 139 N.C. App. at 294, 533 S.E.2d at 820 (internal quotation marks and citation omitted) (emphasis added). This is not the case before us.
In the present case, plaintiffs' claim for damages to property against defendant, which was dismissed on summary judgment, and defendant's counterclaim for breach of contract against plaintiff Mark White, which remains pending, have absolutely no factual issues in common. Plaintiffs' claims for takings against the City are a separate and distinct action and are not before this Court. "[I]f there are no factual issues common to the claim determined and the claims remaining, no substantial right is affected." Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 200, 464 S.E.2d 720, 722 (1995) (emphasis added).
Since plaintiffs' claim and defendant's counterclaim involve separate and distinct issues, plaintiffs cannot appeal the order of summary judgment until adjudication of defendant's counterclaim. Accordingly, plaintiffs' exception to the entry of summary judgment on the complaint adequately and without prejudice preserves its appeal which can be perfected after the trial court on remand has ruled on defendant's breach of contract counterclaim pending in the present action. The existence of a separate and distinct action against a separate defendant involving overlapping factual issues has no bearing on plaintiffs' rights in the present action. "The possibility of a protracted litigation cycle is a risk inherent in our legal system, and the desire to truncate the process does not give rise to a substantial right." Tands, Inc. v. Coastal Plains Realty, Inc., ___ N.C. App. ___, ___, 686 S.E.2d 164, 168 (2009). As such, we dismiss plaintiffs' appeal as interlocutory.
Appeal dismissed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).