An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-621 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
ROBERT KING, ANN KING, MARGARET WHALEY and A. WILLIAM KING, Plaintiffs,
v. Pender County No. 07 CVS 617 ROBERT ORR and MARIANNE ORR, Defendants.
ROBERT KING, ANN KING, MARGARET WHALEY, A. WILLIAM KING, FLORA REINHOLD, LAWRENCE REINHOLD, ELBERT CHRISTIAN, NEBBE DONALDSON, SYLVIA SANDERS, ROSALYN KING, ASHLEY W. KING, JEFFREY THOMAS KING, MICHAEL WILLIAM KING, ELIZABETH KING, and BRENDAN THOMAS KING, Plaintiffs,
v. Pender County No. 05 SP 144-146 ROBERT ORR and MARIANNE ORR, Defendants.
Appeal by plaintiffs from order entered 20 December 2012 by
Judge Phyllis M. Gorham in Pender County Superior Court. Heard
in the Court of Appeals 24 October 2013.
Shipman & Wright, LLP, by W. Cory Reiss, for plaintiffs- appellants. -2- Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey, for defendants-appellees.
GEER, Judge.
Plaintiffs Robert King, Ann King, Margaret Whaley, and A.
William King (collectively "the Kings") appeal from an order
denying in part their motion for a preliminary injunction.
Recognizing that this appeal is interlocutory, plaintiffs argue
that the order -- which denies their right to erect a fence of
their own choosing around a family cemetery located on
defendants' property and denies the Kings other than Ms. Whaley
use of a 60-foot easement to access the cemetery -- is
immediately appealable because it raises issues of collateral
estoppel, res judicata, and the law of the case.
Our appellate courts have recognized that appeals involving
those doctrines may affect a substantial right so as to warrant
an interlocutory appeal, but only when a refusal to allow the
appeal could give rise to duplicative litigation with
potentially inconsistent results. In this case, however,
plaintiffs have failed to show that there is a possibility of
inconsistent results absent immediate appeal. Because
plaintiffs have failed to establish any other basis for
appellate jurisdiction over this interlocutory order, we dismiss
the appeal. -3- Facts
This appeal arises out of a long-standing dispute
concerning the King family cemetery that is located on the
property of defendants Robert and Marianne Orr. Although a more
detailed factual background may be found in King v. Orr, 209
N.C. App. 750, 709 S.E.2d 602, 2011 WL 532295, 2011 N.C. App.
LEXIS 221 (2011) (unpublished) ("King I"), disc. review denied,
365 N.C. 201, 710 S.E.2d 16 (2011), we summarize the facts and
procedural history pertinent to this appeal.
Defendants' property constitutes one tract of a much larger
parcel of land that at one time in the early 1900s was owned by
A.D. King and has since been divided among his heirs or
otherwise sold. Defendants purchased their property in 1990
pursuant to a general warranty deed referencing the "Thompson
Map," which marked the outline of the cemetery on the property.
The cemetery lies within defendants' yard not far from their
house.
Defendants maintained the cemetery and allowed plaintiffs
to visit the cemetery without incident for 14 years. In 2004,
however, the fence surrounding the cemetery fell into disrepair
and a dispute arose between defendants and plaintiffs concerning
the type of fence to be erected around the cemetery. As a -4- result of the dispute, defendants withdrew their consent for
plaintiffs to visit the cemetery.
On 27 June 2005, plaintiffs filed a complaint initiating a
special proceeding before the clerk of court (the "special
proceeding"), pursuant to N.C. Gen. Stat. § 65-75 (2005),1
seeking an order allowing plaintiffs to enter defendants'
property to restore, maintain, and visit the cemetery, and to be
allowed to erect a suitable fence around the cemetery.
On 2 July 2007, plaintiffs filed another complaint ("the
civil action"), seeking injunctive relief and a declaratory
judgment, as well as asserting alternative claims for breach of
contract and an action to quiet title. The complaint alleged
that defendants bought their property subject to several
property interests of plaintiffs including (1) a 60-foot
easement running along the edge of defendants' property leading
to the cemetery, (2) a 12-foot road exception running along the
western edge of defendants' property to a point in Topsail Sound
known as Eden's Landing, and (3) the statutory rights of
plaintiffs to access the cemetery. The complaint further
alleged that defendants had erected a gate preventing plaintiffs
from using the 60-foot easement and the 12-foot exception and
sought a permanent injunction ordering defendants to remove the 1 This provision was repealed in 2007 and is now found in N.C. Gen. Stat. § 65-102 (2013). -5- gate and enjoining and restraining defendants from interfering
with plaintiffs' use of the easements and access to the
cemetery.
On 21 November 2007, the clerk of court entered an order in
the special proceeding finding that each of the plaintiffs was a
direct lineal descendant of at least one person interred in the
cemetery and granting plaintiffs the right to restore, maintain,
and/or visit the cemetery, subject to certain restrictions. The
order limited the Kings' access to the cemetery to the public
roads until such time as the Kings' rights to the easement and
the 12-foot road exception were finally determined in the civil
action. Neither party appealed from the clerk of court's order.
Thereafter, litigation in the civil action continued and,
upon cross-motions by the parties for summary judgment, the
trial court entered an order on 7 August 2009 granting summary
judgment in favor of plaintiffs. The order found that
defendants took title to their property subject to the 60-foot
easement and the 12-foot road exception. The order concluded
that (1) plaintiffs were entitled to use the 60-foot easement to
access the cemetery, (2) plaintiffs Robert King, Ann King, and
Margaret Whaley had the right to use the 12-foot exception to
access Eden's Landing, (3) the boundaries of the cemetery were
established by the "Orr Map" (referred to as the "Thompson Map" -6- in King I and in this opinion), and (4) defendants were enjoined
from interfering with plaintiffs' access to the 60-foot easement
or the 12-foot exception.
Defendants appealed the order, and this Court affirmed in
part and reversed and remanded in part in an opinion filed on 15
February 2011. King I, 2011 WL 532295 at *10, 2011 N.C. App.
LEXIS 221 at *26. Regarding the 60-foot right-of-way easement,
King I noted that "Margaret Whaley took title to Tract Five by
virtue of a deed which contained an explicit reference to the
Estate map[,]" which clearly depicted the 60-foot right-of-way
easement. Id., 2011 WL 532295 at *7, 2011 N.C. App. LEXIS 221
at *19. Accordingly, this Court affirmed the summary judgment
order as to Margaret Whaley's rights to the 60-foot easement.
Id., 2011 WL 532295 at *9, 2011 N.C. App. LEXIS 221 at *25.
However, the Court concluded that Robert King, Ann King, and A.
William King were not entitled to use the 60-foot right-of-way
easement because they did not own any property within the area
platted and recorded in the Estate Map, they were consequently
simply members of the public with respect to the right-of-way,
and the right-of-way was not dedicated to the public. Id., 2011
WL 532295 at *8, 2011 N.C. App. LEXIS 221 at *21-22. However,
this Court remanded for a determination regarding whether the -7- Kings had acquired an easement by implication. Id., 2011 WL
532295 at *9, 2011 N.C. App. LEXIS 221 at *23.
As for the 12-foot exception, King I held that there was a
genuine question of material fact as to ownership of the 12-foot
exception because defendants had presented evidence that called
into question whether the 12-foot exception referenced in a 1932
deed was the same real property described in defendants' deed.
Id., 2011 WL 532295 at *6, 2011 N.C. App. LEXIS 221 at *15.
Therefore, King I remanded this case "to make a proper
determination as to whether the 1932 deed and the twelve foot
exception are, in fact, the same real property that was later
divided in the Estate map, as well as findings regarding what
happened with that real property prior to Defendants taking
title to Tract Six." Id. This Court also noted that without
knowing who owned the 12-foot exception, it could not address
plaintiffs' alternative arguments that they obtained easements
in the 12-foot exception by prescription or by implication from
prior use. Id., 2011 N.C. App. LEXIS 221 at *16.
Finally, the Court affirmed the order as to the boundaries
of the cemetery. Id., 2011 WL 532295 at *9, 2011 N.C. App.
LEXIS 221 at *25. This Court concluded that the Thompson map
was controlling as to the cemetery boundaries and that all the
plaintiffs are entitled to enjoin the removal of the fence or -8- interference with any portion of the cemetery. Id., 2011 WL
532295 at *9, 2011 N.C. App. LEXIS 221 at *23-*25. Our Supreme
Court denied defendants' petition for discretionary review on 15
June 2011. King v. Orr, 365 N.C. 201, 710 S.E.2d 16 (2011).
The record does not show that either party took any action
to proceed to trial on the issues as remanded by this Court, and
the issues remain pending as of this appeal. Instead, on 1
September 2011, plaintiffs Robert King and A. William King went
to defendants' property to stake out the 60-foot easement to the
cemetery. They purported to be acting as agents of Ms. Whaley,
but when they did not offer anything to substantiate their claim
of authority to act as Ms. Whaley's agent, Ms. Orr, with the
help of a deputy sheriff of the Pender County Sheriff's Office,
directed the Kings to leave.
On 13 February 2012, the clerk of court, sua sponte,
ordered that the special proceeding be transferred to the
superior court to be adjudicated with all outstanding issues of
the civil action. In addition, in the spring of 2012,
defendants contacted the Pender County Board of Commissioners
("the Board") to request its consent to allow defendants to
disinter the graves and remove the cemetery pursuant to N.C.
Gen. Stat. § 65-106 (2011). A public hearing on defendants'
request to the Board was scheduled for 21 May 2012. -9- On 9 May 2012, plaintiffs filed a motion for a preliminary
injunction in the civil action (1) to allow a surveyor to stake
out a 60-foot easement and cemetery boundary in accordance with
King I, (2) to allow plaintiffs to place a fence around the
cemetery boundary as shown by the Thompson Map, and (3) to
increase visiting hours to two hours. A hearing on this motion
was held before Judge Erwin Spainhour on 21 May 2012, the same
day as the public hearing before the Pender County Board of
Commissioners. Judge Spainhour deferred ruling on the motion
until after the Board of Commissioners made a decision on
whether to grant defendants' request to move the cemetery.
At the public hearing, the Board deferred their decision on
whether to grant consent to disinter for two months to allow the
parties time to settle the dispute on their own. When the
parties were unable to reach an agreement, the Board, in July
2012, granted consent for defendants to disinter the cemetery.
On 2 August 2012, plaintiffs filed a motion for an order to
show cause and notice of hearing for civil contempt. The motion
alleged that defendants had violated the 27 November 2007
special proceeding order and the 7 August 2009 civil action
summary judgment order, to the extent affirmed by the Court of
Appeals, by (1) applying for and receiving consent from the -10- Board to remove the cemetery and (2) having Robert King and A.
William King removed from their property.
On 10 August 2012, plaintiffs filed an additional action,
12 CVS 794, in which they petitioned the superior court for writ
of certiorari to review the decision of the Board, and, in the
alternative, a request for a declaratory judgment. On 13 August
2012, the clerk of court transferred plaintiffs' petition to the
Superior Court. On 28 August 2012, plaintiffs filed a motion
for a preliminary injunction in this new action, 12 CVS 794,
seeking to enjoin defendants from disinterring the cemetery.
On 17 September 2012, Judge Phyllis Gorham heard
plaintiffs' motion for preliminary injunction in the civil
action and the parties' motions for and against granting the
petition for writ of certiorari in 12 CVS 794. On 20 December
2012, the trial court entered an order denying the Kings'
petition for writ of certiorari, concluding that "the action of
the Commissioners is not quasi-judicial and therefore not
properly subject to review pursuant to the statutory authorities
cited by Plaintiffs in their Petition[.]" Plaintiffs appealed
the 20 December 2012 order in a separate appeal, King v. Pender
Cnty., ___ N.C. App. ___, ___ S.E.2d ___, COA13-618 (2014). In
a separate opinion filed contemporaneously with this opinion, we
have dismissed the appeal as interlocutory because plaintiffs' -11- claim for a declaratory judgment and their motion for
preliminary injunction are still pending.
On 20 December 2012, the trial court entered an order
granting in part and denying in part plaintiffs' motion for a
preliminary injunction that was filed in this case (as opposed
to the motion filed in 12 CVS 794). The order recognized that
defendants had obtained permission from the Board to relocate
the cemetery from the Orr property and that the subject matter
of the order would be mooted in the event the cemetery were to
be relocated. The order, therefore, stated that it "addresses
the rights of the parties until such time as the cemetery is
relocated, without prejudice to the rights of the Defendants to
completion of the relocation of the cemetery in accordance with
N.C. Gen. Stat. § 65-106."
The order concluded that (1) plaintiffs are entitled to
stake out the boundaries of the cemetery pursuant to the
Thompson Map; (2) plaintiffs are not entitled to erect a fence
of their own choosing on the boundary of the cemetery; (3)
Margaret Whaley is entitled to stake out and use the 60-foot
easement as depicted in the Estate Map but not the Thompson Map;
and (4) plaintiffs Robert King, Ann King, and A. William King
are not entitled to use the 60-foot easement. -12- In addition, the trial court ordered defendants to allow
surveyors to access their property for the purposes of surveying
the cemetery boundaries as depicted on the Thompson Map and the
60-foot easement as depicted on the Estate Map and also to allow
Margaret Whaley to clear and use the easement. The order
reaffirmed plaintiffs' right to access the cemetery via Willwood
Lane and Willwood Lane Extension, as provided in the special
proceeding order, for as long as the cemetery remained located
on defendants' property. Finally, the order stated that "[a]s
to the remaining issues raised by the Motions, the Motions are
denied." Plaintiffs appealed the order to this Court.
Discussion
We must first address whether this Court has jurisdiction
to hear this appeal. Plaintiffs concede that the denial of a
motion for preliminary injunction is interlocutory. "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." Veazey v. City of Durham, 231
N.C. 357, 362, 57 S.E.2d 377, 381 (1950).
"Generally, there is no right of immediate appeal from
interlocutory orders and judgments." Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, -13- immediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay [under Rule 54(b) of the Rules of Civil Procedure]. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579
(1999) (internal quotation marks omitted). "[I]t is the
appellant's burden to present appropriate grounds for this
Court's acceptance of an interlocutory appeal[.]" Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d
252, 253 (1994).
Because Rule 54(b) does not apply to this type of order,
plaintiffs contend that jurisdiction is appropriate under the
substantial right exception. They contend, citing N.C. Farm
P'ship v. Pig Improvement Co., 163 N.C. App. 318, 593 S.E.2d 126
(2004), and McCallum v. N.C. Coop. Extension Serv. of N.C. State
Univ., 142 N.C. App. 48, 542 S.E.2d 227 (2001), that a
substantial right is affected because the appeal raises the
issues of collateral estoppel, res judicata, and the law of the
case.
In McCallum, this Court held that denial of a defendant's
motion for summary judgment based on the defense of res judicata -14- may be immediately appealed because it "raises the possibility
that a successful defendant will twice have to defend against
the same claim by the same plaintiff, in frustration of the
underlying principles of claim preclusion." Id. at 51, 542
S.E.2d at 231. The same rationale applies to appeals that raise
the issue of collateral estoppel:
Like res judicata, collateral estoppel (issue preclusion) is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally. Under collateral estoppel, parties are precluded from retrying fully litigated issues that were decided in any prior determination, even where the claims asserted are not the same. The denial of summary judgment based on collateral estoppel, like res judicata, may expose a successful defendant to repetitious and unnecessary lawsuits.
Id. (internal citations and quotation marks omitted). N.C. Farm
Partnerships, applying McCallum, held that a denial of a
preliminary injunction affected a substantial right and was
immediately appealable when an Iowa court had previously granted
a preliminary injunction in favor of appellants, who argued,
albeit ultimately unsuccessfully, that the trial court was bound
by the Iowa injunction under the doctrine of collateral
estoppel. 163 N.C. App. at 321, 593 S.E.2d at 129.
This Court has clarified, however, that not every appeal
raising an issue of res judicata or collateral estoppel is -15- necessarily immediately appealable. Country Club of Johnston
Cnty., Inc. v. U.S. Fid. & Guar. Co., 135 N.C. App. 159, 166,
519 S.E.2d 540, 545 (1999). Rather, a substantial right is
affected "so as to permit immediate appeal only 'where a
possibility of inconsistent verdicts exists if the case proceeds
to trial.'" Id. at 167, 519 S.E.2d at 546 (quoting Cmty. Bank
v. Whitley, 116 N.C. App. 731, 733, 449 S.E.2d 226, 227 (1994)).
See also Heritage Operating, L.P. v. N.C. Propane Exch., LLC,
___ N.C. App. ___, ___, 727 S.E.2d 311, 316 (2012) (applying
Country Club and dismissing appeal as interlocutory where "there
is no possibility of a verdict in the instant case being
inconsistent with any previous judicial determinations").2
Thus, mere invocation of the doctrines of res judicata and
collateral estoppel is not sufficient to establish the existence
of a substantial right that would be lost in the absence of an
immediate appeal. The appellant must show that, as a result of
dismissal of the interlocutory appeal, the parties would be
subject to relitigation of previously determined matters that
would give rise to a risk of inconsistent verdicts or judicial
determinations. Plaintiffs have failed to make the necessary
showing. Contrary to the cases allowing interlocutory appeals 2 As for the doctrine of law of the case, plaintiffs have not cited, and we have not found, any North Carolina cases holding that interlocutory orders raising law of the case issues may affect a substantial right. -16- based on res judicata or collateral estoppel, in this case,
"[t]here has been no decision by any court or jury that could
prove to be inconsistent with a future decision." Robinson v.
Gardner, 167 N.C. App. 763, 769, 606 S.E.2d 449, 453 (2005)
(emphasis added).
Instead, this Court anticipated that the parties would
resolve the remaining issues on remand. Plaintiffs have not
pursued a final judgment in which the trial court would comply
with this Court's mandate by addressing the outstanding issues.
Instead, plaintiffs sought themselves to relitigate issues that
they claim were resolved on appeal through the use of a motion
for a preliminary injunction. The mandate in King I did not
anticipate that this litigation would proceed in this piecemeal
fashion with no final resolution.
By appealing the interlocutory preliminary injunction
order, plaintiffs seek immediate relief from the trial court's
application of King I. Whether or not immediate review of the
motion for preliminary injunction is granted, the issues
remanded by this Court in King I remain pending and will need to
be resolved at trial. Plaintiffs provide no explanation why
they could not proceed as directed by this Court, obtain a final
judgment, and then seek review from this Court of all of the
trial court's rulings in one appeal. -17- Plaintiffs do not and cannot contend that the issues to be
decided at that trial have already been decided and would
subject plaintiffs to relitigation. The relief sought by
plaintiffs in this appeal does not have any effect on the
pending issues on remand, which are concerned with establishing
plaintiffs' property rights in the easement and 12-foot
exception without regard to any rights of plaintiffs pursuant to
the special proceeding order. Therefore, immediate review is
not required to protect the parties from relitigation of issues
already decided, so plaintiffs have failed to meet their burden
of showing the existence of a substantial right warranting
immediate appeal. See also Cmty. Bank, 116 N.C. App. at 733,
449 S.E.2d at 227 (dismissing appeal as interlocutory because
facts of case would not lead to "possibility of inconsistent
verdicts").
Plaintiffs also argue, citing Mills v. Carolina Cemetery
Park Corp., 242 N.C. 20, 27, 86 S.E.2d 893, 898 (1955), that the
appeal affects plaintiffs' substantial right to protect family
graves. Although protecting the graves may be a substantial
right, plaintiffs have not shown that this right would be lost
in the absence of an immediate appeal of the denial of the
motion for preliminary injunction in this case. -18- Plaintiffs contend that immediate review is necessary
because defendants have obtained permission from the Board to
disinter and remove the graves from their property. However, in
ruling on the motion for a preliminary injunction in this
action, the trial court did not address whether defendants could
legally disinter and remove the cemetery from their property.
Consequently, if we were to address the merits of this appeal,
nothing in the opinion would resolve the question whether
defendants may move the cemetery, which is the basis for
plaintiffs' claim of a substantial right.
That question is, however, the subject of the 2 August 2012
motion for civil contempt, the motion for a preliminary
injunction filed in 12 CVS 794, and the petition for writ of
certiorari and request for a declaratory judgment. Although the
trial court denied the petition for writ of certiorari, the
declaratory judgment action, the motion for contempt, and the
motion for a preliminary injunction all remain pending.
In sum, plaintiffs have failed to demonstrate the existence
of a substantial right that would be lost absent an immediate
appeal of the interlocutory order. Plaintiffs' appeal is,
therefore, dismissed.
Dismissed.
Judges STEPHENS and ERVIN concur. -19- Report per Rule 30(e).