RHONDA COATES, TIMOTHY ELLIS, PATRICK and MARIE MAHONEY, KENNETH PRICE, BRYAN and ANGELA SARVIS, JAMES VENTRILLA, and JAMES WOLAK, Petitioners
DURHAM COUNTY, a North Carolina County, and HUBRICH CONTRACTING, INC., a North Carolina Corporation, Respondents
in the Court of Appeals 8 May 2019.
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.
& Bunch, PLLC, by LeAnn Nease Brown, for
Morningstar Law Group, by Jeffrey L. Roether and Patrick L.
Byker, for respondent-appellant Hubrich Contracting, Inc.
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.
and Procedural Background
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 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.
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.
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 ...