in the Court of Appeals 18 April 2018.
by plaintiff from orders entered 23 February 2017 by Judge
Bradley B. Letts and 5 June 2017 by Judge Richard L. Doughton
in Watauga County No. 16-CVS-623 Superior Court.
& Johnson, PLLC, by Nathan A. Miller, for
Cranfill Sumner & Hartzog LLP, by Patrick H. Flanagan and
Meredith FitzGibbon, for defendant-appellee.
appeals from orders denying its motion for preliminary
injunction and granting defendant Town of Boone's motion
to dismiss. We affirm.
March 2016, plaintiff LMSP, LLC filed suit against the Town
of Boone in state court seeking declaratory and injunctive
relief on the grounds that the Town's towing ordinance,
Chapter 73, violated plaintiff's right to substantive due
process, plaintiff's right to equal protection, and
plaintiff's rights under the First Amendment to the
United States Constitution, as well as plaintiff's rights
under Article I, Section 1 of the North Carolina Constitution
and the provisions of N.C. Gen. Stat. § 160A-174. The
Town had that action removed to the United States District
Court for the Western District of North Carolina based on the
existence of federal question jurisdiction.
November 2016, while the federal action was still pending,
the Town's council met and passed several amendments to
the towing ordinance at its regularly scheduled meeting.
Plaintiff thereafter filed another suit against the Town in
state court ("the present action"). The present
action alleges causes of action for violations of the
provisions of N.C. Gen. Stat. § 160A-174 and of the
right to earn a livelihood, the right to due process, and the
right to equal protection under the North Carolina
Constitution. Like the pending federal action, the present
action also seeks declaratory and injunctive relief.
Town's council met again on 15 December 2016 and passed
additional amendments to the towing ordinance. However,
plaintiff claims that those amendments were passed "in
violation of the North Carolina laws governing open meetings
pursuant to N.C. G.S. § 143-318.10(a)." Plaintiff
accordingly filed an amended complaint in the present action
on 22 December 2016 setting forth a new cause of action based
on the open meeting laws. The federal action was still
pending at the time.
January 2017, plaintiff's motion for preliminary
injunction came on for hearing before the Honorable Bradley
B. Letts. Judge Letts denied plaintiff's motion for
preliminary injunction by order entered 23 February 2017 on
the grounds that "Plaintiff cannot show a likelihood of
success on the merits[, ]" and that "Plaintiff has
also failed to allege facts that show it will be irreparably
harmed if the preliminary injunction is not granted."
Judge Letts's conclusion that plaintiff could not
establish a likelihood of success on the merits was based
upon his determination that, in light of the pending federal
action, the present action was "likely barred by the
doctrine of prior action pending."
Town filed a Rule 12(b)(6) motion to dismiss plaintiff's
present action on 6 January 2017. The Town's motion to
dismiss was heard on 22 May 2017 before the Honorable Richard
L. Doughton, and the parties argued whether the prior action
pending doctrine barred this action. Judge Doughton granted
the Town's motion, and dismissed the present action by
order entered 5 June 2017. Plaintiff timely appealed.
appeal, plaintiff argues that the trial court erred (1) by
denying plaintiff's motion for preliminary injunction,
and (2) by granting the Town's motion to dismiss. The
thrust of plaintiff's contentions on appeal is that the
present action is, in fact, not barred by the prior action
pending doctrine. We disagree.