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Coates v. Durham County

Court of Appeals of North Carolina

July 16, 2019

RHONDA COATES, TIMOTHY ELLIS, PATRICK and MARIE MAHONEY, KENNETH PRICE, BRYAN and ANGELA SARVIS, JAMES VENTRILLA, and JAMES WOLAK, Petitioners
v.
DURHAM COUNTY, a North Carolina County, and HUBRICH CONTRACTING, INC., a North Carolina Corporation, Respondents

          Heard in the Court of Appeals 8 May 2019.

          Appeal by Respondent Hubrich Contracting, Inc. from Order entered 28 August 2018 by Judge G. Bryan Collins in Durham County No. 17 CVS 2906 Superior Court.

          Brown & Bunch, PLLC, by LeAnn Nease Brown, for petitioners-appellees.

          Morningstar Law Group, by Jeffrey L. Roether and Patrick L. Byker, for respondent-appellant Hubrich Contracting, Inc.

          HAMPSON, JUDGE.

         Hubrich Contracting, Inc. (Respondent) appeals from an Order reversing the decision of the Durham City-County Board of Adjustment (BOA) to grant a Minor Special-Use Permit (Permit) to Respondent. We, however, determine the Order that Respondent appeals from is an interlocutory order that does not affect a substantial right of Respondent. Therefore, we dismiss this appeal.

         Factual and Procedural Background

         On 7 November 2016, Respondent commenced this proceeding by filing an application for the Permit with the Durham City-County Planning Department, which Permit would allow Respondent to construct a middle school on certain property in Durham County. Following a hearing before the BOA on 28 February 2017, the BOA issued an order granting the Permit on 28 March 2017. On 25 April 2017, Rhonda Coates, Timothy Ellis, Patrick and Marie Mahoney, Kenneth Price, Bryan and Angela Sarvis, James Ventrilla, and James Wolak (Petitioners) petitioned the Durham County Superior Court for review by way of a writ of certiorari. The Durham County Superior Court granted Petitioners' petition on 25 April 2017 and ordered a hearing.

         The hearing occurred on 11 September 2017, and after the hearing concluded, the presiding judge took the matter under advisement. On 28 August 2018, the trial court entered its Final Order and Judgment (Order). In its Order, the trial court reversed the BOA's decision to grant the Permit to Respondent and remanded the matter to the BOA with instructions to, inter alia, reopen the public hearing on Respondent's application for the Permit. Respondent appeals from this Order.

         Jurisdiction

         Although neither party raises this issue, we must address whether this appeal is properly before this Court. See Akers v. City of Mount Airy, 175 N.C.App. 777, 778, 625 S.E.2d 145, 146 (2006) ("[When faced with] a jurisdictional issue, this Court has an obligation to address the issue sua sponte regardless [of] whether it is raised by the parties." (citation omitted)). Indeed, Respondent contends as grounds for appellate review that the Order "is a final judgment . . . and therefore is appealable to the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b)." We disagree.

         "An interlocutory order . . . is one made during the pendency of an action which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Cagle v. Teachy, 111 N.C.App. 244, 247, 431 S.E.2d 801, 803 (1993) (citation omitted).

[T]his Court has consistently held that an order by a superior court, sitting in an appellate capacity, that remands to a municipal body for additional proceedings is not immediately appealable. See, e.g., Heritage Pointe Builders[ v. N.C. Licensing Bd. of General Contractors], 120 N.C.App. [502, ] 504, 462 S.E.2d [696, ] 698 (1995) (appeal of superior court's remand to a licensing board for rehearing dismissed as interlocutory); Jennewein v. City Council of the City of Wilmington, 46 N.C.App. 324, 326, 264 S.E.2d 802, 803 (1980) (appeal of superior court's remand to a city council for a de novo hearing dismissed as interlocutory).

Akers, 175 N.C.App. at 779-80, 625 S.E.2d at 146-47 (appeal of superior court's remand to a board of commissioners for further proceedings ...


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