Gardner v. Richmond County

• Court: Supreme Court of North Carolina
• Decided: October 18, 2024
• Docket: 140PA23
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 140PA23

Filed 18 October 2024

CHAD GARDNER, LISA GARDNER, LONNIE NORTON, HOPE NORTON, THE TOWN OF DOBBINS HEIGHTS, and THE CITY OF HAMLET

v.

RICHMOND COUNTY

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, No. COA21-600 (N.C. Ct. App. May 2,

2023), dismissing the appeal as interlocutory. Heard in the Supreme Court on 24

September 2024.

The Brough Law Firm, PLLC, by Brady N. Herman and T.C. Morphis Jr., for plaintiff-appellant Town of Dobbins Heights.

McGuireWoods LLP, by Henry L. Kitchin Jr. and Dylan M. Bensinger, for defendant-appellee.

No brief for plaintiff-appellees Chad Gardner, Lisa Gardner, Lonnie Norton, Hope Norton, and City of Hamlet.

PER CURIAM.

Defendant Richmond County filed a motion to dismiss the claims of plaintiffs

Town of Dobbins Heights (the Town) and City of Hamlet based on a lack of standing.

The trial court entered an order granting the motion as to the Town but denied it as

to the other municipality. The Town appealed to the Court of Appeals.

Generally, a party has no right to an immediate appeal of an interlocutory GARDNER V. RICHMOND COUNTY

Opinion of the Court

order. In its brief to the Court of Appeals, the Town argued that it should be allowed

to pursue an immediate appeal because otherwise “there would be the possibility of

two trials (one for the remaining Plaintiffs and one for [the Town] if the Court [of

Appeals] were to find that it has standing through a subsequent appeal)” and “[t]wo

trials on the same issue would raise the possibility of inconsistent verdicts.” Gardner

v. Richmond County, No. COA21-600, slip op. at 4 (N.C. Ct. App. May 2, 2023)

(unpublished). The Town further argued that the Court of Appeals had recognized

the right to an immediate appeal in similar circumstances in Creek Pointe

Homeowner’s Ass’n, Inc. v. Happ, 146 N.C. App. 159 (2001). Id.

The Court of Appeals dismissed the Town’s appeal, reasoning that the Town

had “failed to demonstrate a substantial right that would be impacted by th[e]

[c]ourt’s failure to immediately hear its appeal.” Gardner, slip op. at 6. According to

the Court of Appeals, the Town had “simply cite[d] Creek Pointe and essentially

assert[ed] [that] the holding in Creek Pointe require[d] immediate review of [the

Town’s] appeal without analysis.” Id. at 5.

Our review of the Town’s brief to the Court of Appeals reveals that the Town

did more than baldly assert a right of immediate appeal under Creek Pointe. On the

contrary, the statement of appellate review in the Town’s brief adequately explained

why the particular facts of this case satisfy the substantial rights test based on the

holding in Creek Pointe. See Creek Pointe, 146 N.C. App. at 162. Since we agree that

the Town articulated a sufficient factual basis to support appellate jurisdiction under

-2- GARDNER V. RICHMOND COUNTY

Creek Pointe, we hold that the Court of Appeals erred in dismissing the Town’s

appeal. See In re Civ. Penalty, 324 N.C. 373, 384 (1989) (holding that when “a panel

of the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court”).

The decision of the Court of Appeals is reversed. On remand, the Court of

Appeals should address the parties’ competing arguments regarding the issue of

standing.

REVERSED AND REMANDED.

-3-