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LMSP, LLC v. Town of Boone

Court of Appeals of North Carolina

July 17, 2018

LMSP, LLC, Plaintiff,
v.
TOWN OF BOONE, a North Carolina Municipal Corporation, Defendant.

          Heard in the Court of Appeals 18 April 2018.

          Appeal 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.

          Miller & Johnson, PLLC, by Nathan A. Miller, for plaintiff-appellant.

          Cranfill Sumner & Hartzog LLP, by Patrick H. Flanagan and Meredith FitzGibbon, for defendant-appellee.

          ZACHARY, JUDGE.

         Plaintiff appeals from orders denying its motion for preliminary injunction and granting defendant Town of Boone's motion to dismiss. We affirm.

         Background

         In 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.

         On 17 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.

         The 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.

          On 9 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."

         The 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.

         On 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.

          Moti ...


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