in the Court of Appeals 3 May 2017.
by defendant from orders entered 24 and 27 October 2016 by
Judge Robert C. Ervin in Union County No. 16CVS938 Superior
Bishop, Capitano & Moss, PA, by J. Daniel Bishop and
Scott A. Hefner, for plaintiff-appellee.
Turrentine Law Firm, PLLC, by Karlene S. Turrentine, and
Stark Law Group, PLLC, by S.C. Kitchen, for
Town of Marshville ("Defendant Town") appeals from
two orders ruling on motions made in its dispute with Union
County ("Plaintiff County") over the disposal of
wastewater. The appealed orders are interlocutory, and
Defendant Town must therefore establish grounds for appellate
review. Interlocutory review of these orders is argued by
Defendant Town to be proper because the orders affect the
substantial rights of governmental immunity and the avoidance
of the possibility of inconsistent verdicts, and these
substantial rights would be lost without immediate review.
Because Defendant Town is unable to establish that either
ground for appellate review applies to the appealed orders,
we dismiss as interlocutory.
& Procedural Background
1978, Plaintiff County and Defendant Town entered into a
contract under which the wastewater and sewage of Defendant
Town was collected, transported, monitored, and treated in
exchange for payment of the costs incurred by Plaintiff
County to carry out these duties. Since 1981, when the
municipal collection system became operational, the system
has transported Defendant Town's sewage up to thirty
miles to the treatment plant owned by the City of Monroe.
law requires that a user charge system be implemented under
which each user pays a proportional share of the costs of
operations and maintenance, which includes necessary
replacement of capital assets. The 1978 Contract implemented
the payment structure used by the parties. In 1994, an
agreement was reached extending the contract term until 2011.
In the early 2000's, the system needed repair, to the
point that state regulators required corrective action to be
taken by the County. Between 2005 and 2011, Plaintiff County
spent more than $12 million in improving the system, although
some of this cost was funded through federal grants.
2011, Plaintiff County notified Defendant Town that their
contract term had ended. A new contract was proposed in 2012
to Defendant Town, but no agreement was reached. For several
years both parties operated under the terms of the original
contract. However, in 2014, Defendant Town ceased its payment
of the required user fees for its use of the sewage system.
It was for the collection of over $467, 000.00 of unpaid fees
owed by Defendant Town that Plaintiff County filed this
lawsuit on April 11, 2016.
Town moved to dismiss the lawsuit, denying any obligation in
contract or restitution. It also filed counterclaims
asserting equitable ownership of the sewage system. Plaintiff
County responded by formally revoking its permission for
Defendant Town to discharge it sewage into the county system.
It also amended its complaint to add claims, and it sought a
preliminary injunction against Defendant Town to stop any
further discharge into its system. The parties then
cross-filed a motion to dismiss by Defendant Town and for
judgment on the pleadings by Plaintiff County.
October 7, 2016, a motions hearing was held in Union County
Superior Court. Three orders were entered as a result of the
hearing. First, on October 10, the trial court entered a
preliminary injunction order requiring the Defendant Town to
cease discharging sewage into the system. This injunction
order was previously appealed, but the parties entered into a
consent order causing that appeal to be moot and it was
therefore dismissed. Then, on October 24, the trial court
entered an order on the Plaintiff County's motion for
judgment on the pleadings. In this order, the trial court
granted in part and denied in part the motion, dismissing the
Defendant Town's counterclaims for constructive and
resulting trust and those labeled "Exclusive
Emoluments" and "Clean Water Act." Finally, on
October 27, the trial court entered an order granting in part
and denying in part the Defendant Town's motion to
dismiss, allowing a breach of contract claim to continue, but
dismissing a separate breach claim and an unjust enrichment
claim. It is from these last two orders that Defendant Town
Grounds for Appellate Review
appeals process is designed to eliminate the unnecessary
delay and expense of repeated fragmentary appeals, and to
present the whole case for determination in a single appeal
from the final judgment." Stanford v. Paris,
364 N.C. 306, 311, 6 ...