Town of Apex v. Rubin

• Court: Court of Appeals of North Carolina
• Decided: May 4, 2021
• Docket: 20-305
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-188

No. COA20-305

Filed 4 May 2021

Wake County, No. 19-CVS-6295

TOWN OF APEX, Plaintiff,

v.

BEVERLY L. RUBIN, Defendant.

Appeal by Defendant from orders entered 21 January 2020 by Judge G. Brian

Collins in Wake County Superior Court. Heard in the Court of Appeals 24 February

2021.

Nexen Pruet, PLLC, by David P. Ferrell and Norman W. Shearin, for Plaintiff- Appellee.

Fox Rothschild LLP, by Matthew Nis Leerberg and Troy D. Shelton, and Howard, Stallings, From, Atkins, Angell & Davis, P.A., by Kenneth C. Haywood and B. Joan Davis, for Defendant-Appellant.

Johnston, Allison & Hord, P.A., by R. Susanne Todd and Maisha M. Blakeney, and Sever Storey, LLP, by Shiloh Daum, for amicus curiae North Carolina Advocates for Justice.

John Locke Foundation, by Jonathan D. Guze, amicus curiae.

INMAN, Judge.

¶1 This appeal arises from the same underlying facts at issue in Town of Apex v.

Rubin, COA20-304, ___ N.C. App. ___, 2021-NCCOA-___ (filed 4 May 2021) TOWN OF APEX V. RUBIN

Opinion of the Court

(hereinafter “Apex v. Rubin I”), filed concurrently with this opinion. In that action,

as here, Plaintiff-Appellee Town of Apex (“the Town”) asserts title to a sewer line

installed on Defendant-Appellant Beverly L. Rubin’s (“Ms. Rubin”) land for a non-

public purpose, in excess of the Town’s eminent domain powers, and in violation of

Ms. Rubin’s constitutional rights. Both cases involve the same facts and some of the

same legal issues. Apex v. Rubin I arises from post-judgment orders in a direct

condemnation action. This appeal arises from interlocutory orders in a separate

declaratory judgment action filed by the Town to settle the parties’ rights in the sewer

line and prohibit Ms. Rubin from disturbing it after the Town’s condemnation action

was dismissed.

¶2 Ms. Rubin appeals from interlocutory orders denying her motion to dismiss the

Town’s declaratory judgment complaint and granting the Town’s motion for a

preliminary injunction. After careful review, we reverse in part and affirm in part

the trial court’s denial of Ms. Rubin’s motion to dismiss. We vacate in part and affirm

in part the preliminary injunction.

I. FACTUAL AND PROCEDURAL HISTORY

¶3 Many of the facts underlying this appeal are discussed in Apex v. Rubin I. But

because this appeal arises out of a separate action with its own unique procedural

history, we will summarize facts pertinent to the issues before us here. TOWN OF APEX V. RUBIN

1. The Direct Condemnation Action, Appeal, Post-Judgment Motions, and The Town’s Response

¶4 In 2015, the Town filed a direct condemnation action and, under its statutory

“quick take” powers, assumed title to a sewer easement across Ms. Rubin’s property

to connect a private residential development called Riley’s Pond to the Town’s sewer

service. Ms. Rubin contested the direct condemnation action as for a non-public

purpose but did not counterclaim for or otherwise pursue injunctive relief. While the

direct condemnation was pending, the Town installed its sewer pipe on Ms. Rubin’s

property.

¶5 The trial court ultimately ruled in favor of Ms. Rubin, declared the taking was

for an impermissible non-public purpose, and entered a judgment dismissing the

Town’s direct condemnation action in October 2016 (“the Judgment”). The Judgment

was left undisturbed following a series of post-judgment motions and appeals by the

Town. Town of Apex v. Rubin, 262 N.C. App. 148, 153, 821 S.E.2d 613, 616-17 (2018),

temp. stay dissolved, disc. rev. denied, 372 N.C. 107, 825 S.E.2d 253 (2019).

¶6 Having prevailed in the direct condemnation action, Ms. Rubin asked the Town

to remove the sewer line. The Town refused, leading Ms. Rubin to file a combined

motion to enforce the Judgment and petition for writ of mandamus to compel the

Town to remove the sewer pipe. TOWN OF APEX V. RUBIN

¶7 The Town responded to Ms. Rubin’s motion in two ways. First, in the direct

condemnation action, it filed a motion for relief on the basis that the Judgment voided

the action ab initio, extinguished the trial court’s jurisdiction, and rendered the

installation of the sewer line a separate inverse condemnation. Second, the Town

filed a new declaratory judgment lawsuit—the subject of this appeal—seeking to

declare the sewer pipe installation an easement by inverse condemnation, limit Ms.

Rubin’s relief to that singular remedy, and enjoin her from removing the sewer line.

2. The Declaratory Judgment Complaint and Ms. Rubin’s Motion to Dismiss

¶8 The facts alleged in the Town’s declaratory judgment complaint largely restate

the procedural history of the direct condemnation action through the filing of Ms.

Rubin’s post-judgment motions. Based on those facts, the Town asserts it is entitled

to judgment declaring:

(1) . . . that the installation of the sewer line on 27 July 2015 was an inverse taking, (2) that inverse condemnation is Rubin’s sole remedy for the installation of the sewer pipe on her property, (3) that the remedy of inverse condemnation is time barred, (4) that given the Town’s limited waiver of its defense of the statute of limitations, Rubin is entitled to a jury trial on the issue of the amount of compensation due for the inverse taking described in this complaint, (5) that . . . relief be granted to order a jury trial to be held on the issue of the amount of compensation due for the inverse taking described in this complaint, (6) that . . . relief be granted to order the amount deposited by the Town that is being held by the Clerk of Superior Court for the benefit of Rubin be deemed to be the Town’s deposit of its estimate of just compensation for the inverse taking TOWN OF APEX V. RUBIN

described in this complaint, (7) that the judgment is res judicata as to any claims by Rubin for injunctive relief or an extraordinary writ, and/or should not be applied prospectively . . . , and (8) [that] the doctrines of laches, economic waste, and other similar equitable doctrines bar Defendant from causing the removal of the sewer pipe.

¶9 Ms. Rubin filed a motion to dismiss the Town’s complaint under Rule 12(b)(6)

of the North Carolina Rules of Civil Procedure, arguing that the complaint was barred

by res judicata and the prior action pending doctrine based on the Judgment and her

then-unresolved post-judgment motions.

3. The Orders Denying Ms. Rubin’s Motion to Dismiss and Entering a Preliminary Injunction

¶ 10 The trial court heard motions in both the direct condemnation action and the

declaratory judgment action jointly and ruled for the Town in each. In the direct

condemnation action, the trial court denied Ms. Rubin’s motion to enforce the

Judgment, denied Ms. Rubin’s petition for writ of mandamus, and granted the Town’s

motion for relief from the Judgment. We review those rulings in Apex v. Rubin I. In

the declaratory judgment action, the trial court denied Ms. Rubin’s motion to dismiss

and entered a preliminary injunction prohibiting Ms. Rubin from disturbing the

sewer line. This decision addresses only the declaratory judgment action.1

1 The direct condemnation action is discussed in greater detail in Apex v. Rubin I. To the extent we discuss the contents of the record of Apex v. Rubin I, we take judicial notice of those documents. See West v. G.D. Reddick, Inc., 302 N.C. 201, 202, 274 S.E.2d 221, 223 TOWN OF APEX V. RUBIN

¶ 11 The trial court’s order denying Ms. Rubin’s motion to dismiss, consistent with

ordinary practice, contains no findings of fact or conclusions of law, and simply denies

dismissal on the two grounds asserted by Ms. Rubin. In its preliminary injunction

order, the trial court made findings of fact and conclusions of law establishing: (1) a

dispute existed between the parties as to whether Ms. Rubin could disturb, destroy,

or compel the Town to remove the sewer line; (2) an inverse condemnation had

occurred as a result of the Town’s installation of the sewer line and the subsequent

dismissal of the direct condemnation action; (3) Ms. Rubin’s sole remedy was an

inverse condemnation claim; (4) removal of the sewer line would cause irreparable

harm to the Town and the lots and/or homes served in Riley’s Pond; (5) an injunction

was necessary to protect the Town’s rights and preserve the status quo during the

course of litigation; (6) there are no practical alternatives available to the Town to

serve Riley’s Pond; and (7) the Town is likely to succeed on the merits of its claims for

declaratory and injunctive relief.

¶ 12 Ms. Rubin noticed an appeal from both orders. The Town filed a motion to

dismiss Ms. Rubin’s appeal with this Court on 19 May 2020 on the ground that the

orders below are interlocutory and do not affect a substantial right. Ms. Rubin then

(1981) (“[A] court may take judicial notice of its own records in another interrelated proceeding where the parties are the same, the issues are the same and the interrelated case is referred to in the case under consideration.”). TOWN OF APEX V. RUBIN

filed a conditional petition for writ of certiorari requesting review should this Court

grant the Town’s motion to dismiss.

II. ANALYSIS

¶ 13 Ms. Rubin broadly argues, as she does in Apex v. Rubin I, that the trial court’s

orders in this case stem from the erroneous conclusions that: (1) the Judgment does

not grant her a right to mandatory injunctive relief to remove the pipe; and (2) the

Town’s installation of the pipe during the pendency of the direct condemnation action,

absent any effort by Ms. Rubin to enjoin that installation, vested the Town with title

to a sewer easement by inverse condemnation. Because those issues are necessary to

the resolution of Apex v. Rubin I, she contends the Town’s declaratory judgment

action, and by extension its request for a preliminary injunction, are barred by res

judicata and the prior action pending doctrine.

1. Appellate Jurisdiction

¶ 14 We first resolve the question of appellate jurisdiction. Both parties agree that

Ms. Rubin seeks to appeal two interlocutory orders, and that such orders are not

subject to immediate appellate review unless they affect a substantial right. N.C.

Gen. Stat. § 7A-27(b)(3)(a) (2019). As explained below, we conclude both orders affect

a substantial right.

¶ 15 Interlocutory orders rejecting a res judicata defense may affect a substantial

right when “ ‘(1) the same factual issues would be present in both trials and (2) the TOWN OF APEX V. RUBIN

possibility of inconsistent verdicts on those issues exists.’ ” Whitehurst Inv. Props,

LLC .v NewBridge Bank, 237 N.C. App. 92, 96, 764 S.E.2d 487, 490 (2014) (quoting

Heritage Operating, L.P. v. N.C. Propane Exch., LLC, 219 N.C. App. 623, 628, 727

S.E.2d 311, 315 (2012)).

¶ 16 Both prongs are satisfied here. Apex v. Rubin I and the declaratory judgment

action arise out of the same factual issues. In Apex v. Rubin I, the Town sought relief

from the Judgment by asserting that: (1) the installation of the sewer pipe and

dismissal of the direct condemnation action gave it title by inverse condemnation;

and (2) Ms. Rubin’s sole remedy is monetary compensation for the inverse

condemnation. Here, the Town alleges ownership of a sewer easement based on these

same facts under the same legal theory, and again asserts Ms. Rubin can only receive

monetary compensation for the taking in an amount determined by a jury. Given our

holding in Apex v. Rubin I that the Town does not have title to any sewer easement

across Ms. Rubin’s land under any condemnation theory, that she cannot be

compelled to accept monetary compensation for the violation of her constitutional

rights, and that she may seek mandatory injunctive relief through a separate

trespass claim for the Town’s unlawful presence, the declaratory judgment action

presents a possibility of inconsistent verdicts on the question of the Town’s ownership

of a sewer easement and, by extension, the remedy available to Ms. Rubin for the

taking. TOWN OF APEX V. RUBIN

¶ 17 The trial court’s orders denying Ms. Rubin’s motion, based on res judicata, to

dismiss the Town’s declaratory judgment action and granting the Town’s motion for

preliminary injunction entered conclude—contrary to our holdings in Apex v. Rubin

I—that the Town has title to a sewer easement by inverse condemnation and Ms.

Rubin’s sole remedy is monetary compensation. These orders thus affect a

substantial right and we deny the Town’s motion to dismiss this appeal.

¶ 18 Even assuming, arguendo, that the trial court’s orders do not affect a

substantial right, Ms. Rubin’s petition for writ of certiorari is appropriate to “serve

the expeditious administration of justice or some other exigent purpose.” Stanback

v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975). The interests of judicial

economy are implicated and may be well served by certiorari review of interlocutory

orders when they are “interrelated [in] nature” to other issues on appeal as a matter

of right. Jessee v. Jessee, 212 N.C. App. 426, 431, 713 S.E.2d 28, 33 (2011). See also

Radcliffe v, Avenel Homeowners Ass’n, 248 N.C. App. 541, 551, 789 S.E.2d 893, 901-

02 (2016) (granting certiorari review of interlocutory orders when they “factually

overlapp[ed]” with other issues on review). Our resolution of Apex v. Rubin I

necessarily impacts the claims and defenses available to the parties in the declaratory

judgment action, and, given this overlap, the interests of judicial economy are served TOWN OF APEX V. RUBIN

by immediate review of the interlocutory orders at issue here.2 As a result, and even

absent a substantial right, we would grant Ms. Rubin’s petition for certiorari review

of the trial court’s denial of her motion to dismiss and its preliminary injunction

order.

2. Standards of Review

¶ 19 We review a denial of a motion to dismiss under Rule 12(b)(6) de novo. Green

v. Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755, 761 (2010). In undertaking this

review, “[w]e consider the allegations in the complaint true, construe the complaint

liberally, and only reverse the trial court’s denial of a motion to dismiss if plaintiff is

entitled to no relief under any set of facts which could be proven in support of the

claim.” Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652

(2008) (citation omitted). A 12(b)(6) motion:

is seldom an appropriate pleading in actions for declaratory judgments, and will not be allowed simply because the plaintiff may not be able to prevail. It is allowed only when the record clearly shows that there is no basis for declaratory relief as when the complaint does not allege an actual, genuine existing controversy.

N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 439, 206 S.E.2d 178,

182 (1974) (citations omitted).

2 The Town did not oppose Ms. Rubin’s petition for certiorari review and conceded at

oral argument that this appeal overlaps with Apex v. Rubin I. TOWN OF APEX V. RUBIN

¶ 20 Review of an order granting a preliminary injunction is also “essentially de

novo.” Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 540, 320 S.E.2d 693, 696

(1984). This extends to findings of fact made by the trial court, as “an appellate court

is not bound by the findings [in the preliminary injunction order], but may review

and weigh the evidence and find facts for itself.” A.E.P. Indus., Inc. v. McClure, 308

N.C. 393, 402, 302 S.E.2d 754, 760 (1983) (citations omitted). Even so, “a trial court’s

ruling on a motion for a preliminary injunction is presumed to be correct, and the

party challenging the ruling bears the burden of showing it was erroneous.” Analog

Devices, Inc. v. Michalski, 157 N.C. App. 462, 465, 579 S.E.2d 449, 452 (2003) (citation

omitted). A preliminary injunction is only available:

(1) if a plaintiff is able to show likelihood of success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff’s rights during the course of litigation.

Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977) (citations

omitted).

3. Res Judicata Precludes Relitigation of Title to the Sewer Easement

¶ 21 Ms. Rubin argues that the Judgment in Apex v. Rubin I and res judicata bars

the Town “from relitigating whether the Town has a claim to an easement on Ms.

Rubin’s property.” We agree. TOWN OF APEX V. RUBIN

¶ 22 “Generally, in order that the judgment in a former action may be held to

constitute an estoppel as res judicata in a subsequent action there must be identity

of parties, of subject matter and of issues.” Carolina Power & Light Co. v. Merrimack

Mut. Fire Ins. Co., 238 N.C. 679, 691, 79 S.E.2d 167, 175 (1953). All three

requirements are met here. The parties are the same. The subject matter, namely,

a sewer easement across Ms. Rubin’s land to serve Riley’s Pond, is the same. And the

issues—whether the Town can compel Ms. Rubin to surrender title to such an

easement in exchange for compensation—are the same. In fact, despite now claiming

Apex v. Rubin I did not involve the same facts or issues, the Town moved for—and

received—relief from the Judgment on the basis that “[t]he sewer easement is the

subject of the captioned [direct] condemnation . . . [and] [t]he inverse condemnation

of the sewer easement . . . transferred title to the easement to the Town.” And though

the Town now argues res judicata should not apply because the Judgment in Apex v.

Rubin I did not specifically address a taking by inverse condemnation, a party cannot

escape the doctrine’s application merely by swapping theories of recovery. See, e.g.,

Rodgers Builders, Inc. v. McQueen, 76 N.C. App. 16, 30, 331 S.E.2d 726, 735 (1985)

(“The defense of res judicata may not be avoided by shifting legal theories or asserting

a different ground for relief.” (citations omitted)).

¶ 23 As we held in Apex v. Rubin I, binding precedents preclude us from holding

that the Town took title to a sewer easement by inverse condemnation across Ms. TOWN OF APEX V. RUBIN

Rubin’s land by virtue of its “ [‘]precipitate entry and construction’ ” during the

pendency of the direct condemnation action and in the face of Ms. Rubin’s defense

that the taking was for a non-public purpose. Apex v. Rubin I, ___ N.C. App. at ___,

2021-NCCOA-___, ¶ 23 (quoting State Highway Comm’n v. Thornton, 271 N.C. 227,

237, 156 S.E.2d 248, 256 (1967)). See also Town of Midland v. Morris, 209 N.C. App.

208, 214, 704 S.E.2d 329, 335 (2011) (holding a “city [cannot] obtain permanent title

to the land by fulfilling the purpose of a condemnation before final judgment”). The

Judgment in Apex v. Rubin I, involving the same parties, subject matter, and issues,

was therefore res judicata as to any claim by the Town that the completion of the

sewer pipe during the direct condemnation action vested it with title to a sewer

easement.3 We reverse the denial of Ms. Rubin’s motion to dismiss as it pertains to

this claim.

¶ 24 We are unpersuaded by the Town’s argument that our decision in City of

Charlotte v. Rousso, 82 N.C. App. 588, 346 S.E.2d 693 (1986), supports a

determination that res judicata does not apply here. In Rousso, the City of Charlotte

3 The Town, as it did in Apex v. Rubin I, relies on Wilkie v. City of Boiling Spring

Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018), for the proposition that it can claim title to the easement by inverse condemnation irrespective of the Judgment in the direct condemnation action. We find Wilkie inapplicable here for all the reasons stated in Apex v. Rubin I. ___ N.C. App. at ___, 2021-NCCOA-___, ¶ 26. Wilkie did not involve the doctrine of res judicata or the issue of whether a condemnor can swap its legal theory of ownership from direct condemnation to inverse condemnation when an action under the former fails. TOWN OF APEX V. RUBIN

filed a direct condemnation action to convert a landowner’s lot into retail space for

rent by private enterprises. Id. at 589, 346 S.E.2d at 694. When that direct

condemnation action was dismissed as for a non-public purpose, Charlotte filed a new

direct condemnation action seeking to take the same lot for a public park. Id. We

held that the new condemnation action was not barred by res judicata because the

change in purpose meant it was “not based upon the same facts as the prior

case . . . [and] [wa]s free of the illegal taint that caused the earlier case to fail.” Id.

¶ 25 We are not persuaded that this Court’s decision in Rousso supports the Town’s

position here. The condemnor in Russo fundamentally changed its purpose for taking

the landowner’s property—from use for retail space to use for a public park—before

bringing its second condemnation action. No such change has occurred here, as the

Town has simply changed its legal theory to take a sewer easement across Ms.

Rubin’s land to serve Riley’s Pond. Further, unlike the condemnor in Rousso, the

Town has not filed a second direct condemnation action, but instead claims title

through inverse condemnation by dint of the sewer pipe it installed for a non-public

purpose in the failed direct condemnation action. Nothing has rendered the Town’s

actions “free of the illegal taint that caused the earlier case to fail,” Rousso, 82 N.C.

App. at 589, 346 S.E.2d at 694, so res judicata applies.

4. Res Judicata Bars the Town’s Claims that Inverse Condemnation Is Ms. Rubin’s Sole Remedy, Compensation Is Her Sole Relief, and Mandatory Injunctive Relief is Unavailable TOWN OF APEX V. RUBIN

¶ 26 We likewise conclude that our holding in Apex v. Rubin I and res judicata bar

a declaratory judgment limiting Ms. Rubin’s remedy to compensation pursuant to an

inverse condemnation claim. In Apex v. Rubin I, the Town moved for relief from the

Judgment on the ground, among others, that inverse condemnation is the only cause

of action available to Ms. Rubin, that “[t]he exclusive remedy to which [Ms.] Rubin is

entitled for inverse condemnation is compensation,” and that “the Town . . . [is]

insulate[d] from [Ms.] Rubin’s claim that she is entitled to mandatory injunctive

relief.” The trial court then entered orders agreeing with those arguments. Despite

requesting and receiving an order relieving it from the Judgment on those bases in

the direct condemnation action, the Town nonetheless sought and obtained an

identical determination in its declaratory judgment action. Because these claims for

declaratory relief involve the same parties, the same subject matter, and the same

issues as those raised and determined in Apex v. Rubin I, our holding therein that

Ms. Rubin cannot be compelled to accept compensation and may instead elect to

pursue mandatory injunctive relief through a trespass claim bars relitigation of these

questions by the Town in its declaratory judgment action. Apex v. Rubin I, ___ N.C.

App. at ___, 2021-NCCOA-___, ¶ 42.

5. The Town’s Remaining Claims Are Not Barred

¶ 27 The Town’s declaratory judgment action seeks resolution of other claims that TOWN OF APEX V. RUBIN

we conclude are not barred, because they were not addressed in the Judgment.

Specifically, the complaint alleges the Town’s ownership of the pipe itself, asserts “[a]

genuine controversy exists between the Town and [Ms.] Rubin as to their rights and

duties regarding the underground sewer line,” requests a permanent injunction

“enjoining [Ms.] Rubin . . . from removing or disturbing the sewer line,” and seeks a

declaration that “the doctrines of laches, economic waste, and other similar equitable

doctrines bar [Ms. Rubin] from causing the removal of the sewer pipe.” The question

raised by these claims—what is to be done with the Town’s encroaching pipe following

the Judgment now that fee simple title in the land reverted back to Ms. Rubin—was

not raised by Ms. Rubin or addressed by the Judgment in Apex v. Rubin I. As our

opinion explains:

[T]he Judgment reverted title to Ms. Rubin in fee, restoring to her exclusive rights in the tract and divesting the Town of any legal title or lawful claim to encroach on it.

But because Ms. Rubin did not seek mandatory injunctive relief in the direct condemnation action, she is not entitled to that remedy by the plain language of the Judgment. . . . The trial court . . . rendered its Judgment declaring null and void both the direct condemnation action and the Town’s “quick take” title to the easement. The Judgment, given the issues raised before the trial court, did nothing more than that.

Apex v. Rubin I, ___ N.C. App. at ___, 2021-NCCOA-___, ¶¶ 32-33 (citations omitted).

¶ 28 Thornton, discussed at length in Apex v. Rubin I, likewise suggests that TOWN OF APEX V. RUBIN

dismissal of a direct condemnation action does not serve to fully and finally adjudicate

what relief is available against parties who continue to occupy the land when the

landowner did not seek an injunction during condemnation. In such a circumstance,

the prevailing landowners “are entitled to have [the direct condemnation] proceeding

dismissed, leaving them to whatever rights they may have against those who have

trespassed upon their land and propose to continue to do so.” Thornton, 271 N.C. at

240, 156 S.E.2d at 258 (emphasis added). Here, because the Judgment addressed

only whether the Town lawfully took title to a sewer easement across Ms. Rubin’s

land—and not what must now be done with the installed sewer pipe—the extent and

enforcement of the “rights [Ms. Rubin] may have” against the Town were not

adjudicated in the Judgment. The Town’s declaratory judgment action therefore

presents new issues,4 namely whether the trespassing Town must remove its pipe or

can preclude Ms. Rubin from disturbing it despite title based on “laches, economic

waste, and other similar equitable doctrines.”5

4 We do not address whether the Town might ultimately prevent a removal of the pipe

based on the equitable doctrines asserted in its complaint, as that is not the question raised by a 12(b)(6) motion to dismiss a declaratory judgment action. See, e.g., Morris v. Plyler Paper Stock Co., 89 N.C. App. 555, 557, 366, S.E.2d 556, 558 (1988) (“A motion to dismiss for failure to state a claim is seldom appropriate in actions for declaratory judgments, and will not be allowed simply because the plaintiff may not be able to prevail.”). 5 At least one of the equitable doctrines contemplated by the Town is generally raised

as an affirmative defense. See, e.g., MMR. Holdings, LLC v. City of Charlotte, 148 N.C. App. 208, 209-10, 558 S.E.2d 197, 198 (2001) (describing the equitable doctrine of laches as an “affirmative defense”). And we acknowledge that res judicata “bars every ground of recovery TOWN OF APEX V. RUBIN

¶ 29 Ms. Rubin further contends that the declaratory judgment action should be

dismissed in toto because the complaint allegedly failed to disclose a genuine

controversy. She premises this argument on her belief that the question of whether

removal of the sewer pipe is required had already been fully adjudicated and

determined in Apex v. Rubin I. However, as we have stated, the Judgment simply

determined title reverted to Ms. Rubin and did not address what must be done with

the Town’s pipe under her land. We therefore reject this argument.

¶ 30 We also conclude that the prior action pending doctrine does not require

dismissal of the Town’s request for a declaration as to whether the pipe must be

moved or may remain under some equitable theory absent title. Under the doctrine,

“[w]hen a prior action is pending between the same parties, affecting the same subject

matter in a court within the state . . . having like jurisdiction, the subsequent action

is wholly unnecessary and therefore, in the interest of judicial economy, should be

subject to plea in abatement.” State ex rel. Onslow Cty. v. Mercer, 128 N.C. App. 371,

375, 496 S.E.2d 585, 587 (1998) (citations omitted). However, for purposes of the

or defense which was actually presented or which could have been presented in the previous action.” Goins v. Cone Mills Corp., 90 N.C. App. 90, 93, 367 S.E.2d 335, 336-37 (1988) (emphasis added). However, because Ms. Rubin did not assert a claim for mandatory injunctive relief in the prior action and did not receive a judgment to that effect, any equitable defenses to such relief are not barred by res judicata. See Walton v. Meir, 10 N.C. App. 598, 604, 179 S.E.2d 834, 838 (1971) (“[T]his principle simply means that a defendant must assert any defense that he has available, and that he will not be permitted in a later action to assert as an affirmative claim, a defense, which if asserted and proved as a defense in the former action, would have barred the judgment entered in plaintiffs’ favor.” (emphasis added)). TOWN OF APEX V. RUBIN

doctrine, “[a]n action is deemed to be pending from the time it is commenced until its

final determination,” and the rights available to Ms. Rubin were finally determined

upon entry of the Judgment. Apex v. Rubin I, ___ N.C. App. at ___, 2021-NCCOA-

___, ¶¶ 32-33. While Ms. Rubin raised in her post-judgment motions the issue of

whether the Town must be compelled to remove the pipe, we have held that the

Judgment did not award her such relief and she was not entitled to obtain it in that

action. Id. at ___, 2021-NCCOA-___, ¶ 33. In other words, because the Judgment did

not grant mandatory injunctive relief, despite Ms. Rubin’s post-judgment motions, no

proper action regarding removal of the pipe was pending at the time the Town filed

its declaratory judgment action.

6. The Preliminary Injunction

¶ 31 A preliminary injunction is proper:

(1) if a plaintiff is able to show likelihood of success on the merits of his [or her] case and (2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the Court, issuance is necessary for the protection of a plaintiff's rights during the course of litigation.

Ridge Cmty. Inv’rs, Inc. v. Berry, 293 N.C. 688, 701 239 S.E.2d 566, 574 (1977). Ms.

Rubin only challenges the first prong, arguing that the Town cannot show a likelihood

of success on the merits because the entire complaint should have been dismissed

under res judicata or prior action pending grounds. We agree with Ms. Rubin that TOWN OF APEX V. RUBIN

the Town cannot succeed on its claims that are barred by Apex v. Rubin I and res

judicata, as discussed in Parts II.3-4 above. We therefore vacate findings of fact 9,

11, 14, 20, and 21, as well as a portion of conclusion of law 2, in the preliminary

injunction order that are contrary to Apex v. Rubin I. In light of today’s decisions in

these cases, the Town cannot show a likelihood of success on those claims.

¶ 32 Ms. Rubin further asserts the trial court erred in finding as a fact that there

are no practical alternatives to the currently installed sewer line that could provide

sewer service to Riley’s Pond. She points out that documents provided to the trial

court by both parties demonstrate numerous alternatives to the sewer pipe currently

running through her property. Based on the evidence of record, we vacate finding of

fact 28 and the portion of conclusion of law 10 stating that there are no practical

alternatives to the sewer line already installed on Ms. Rubin’s land.

¶ 33 Though we vacate portions of the preliminary injunction order, we ultimately

leave it undisturbed in light of our holding that the Town’s request for a declaration

resolving whether the pipe may be removed is not subject to dismissal. We must

presume the preliminary injunction was proper, and Ms. Rubin bears the burden of

showing error to rebut the presumption. Analog Devices, Inc., 157 N.C. App. at 465,

579 S.E.2d at 452. Ms. Rubin has offered no argument against a likelihood of success

on this claim beyond the res judicata and prior action pending arguments, which we

have rejected, so she has not rebutted the presumption that the trial court correctly TOWN OF APEX V. RUBIN

determined the Town was likely to succeed on this claim.6 We therefore affirm the

remainder of the preliminary injunction order.

III. CONCLUSION

¶ 34 For the foregoing reasons, we reverse the trial court’s denial of Ms. Rubin’s

motion to dismiss as to declarations (1)-(7) sought by the Town in paragraph 27 of its

amended complaint. We affirm the denial of Ms. Rubin’s motion as to declaration (8)

requested by that same paragraph. As to the preliminary injunction order, we vacate

findings of fact 9, 11, 14, 20, 21, and 28, as well as those portions of conclusions of law

2 and 10 described above. We affirm the remainder of the preliminary injunction

order and remand this action to the trial court for further proceedings not

inconsistent with this opinion.

REVERSED IN PART; VACATED IN PART; AFFIRMED IN PART AND

REMANDED FOR FURTHER PROCEEDINGS.

6 Our vacatur of the finding and conclusion that no alternatives to the current sewer

pipe exist does not preclude affirmance of the preliminary injunction. The second prerequisite to a preliminary injunction—which is not argued by Ms. Rubin on appeal—is satisfied “if . . . , in the opinion of the Court, issuance is necessary for the protection of a plaintiff’s rights during the course of litigation.” Ridge Cmty. Inv’rs, Inc., 293 N.C. at 701, 239 S.E.2d at 574. As set forth above, Ms. Rubin only challenges a likelihood of success on the merits and the specific factual determination that there were no alternatives to the existing sewer line; she levies no argument against the trial court’s conclusion that the preliminary injunction was necessary to protect the Town’s rights in the pipe pending litigation of the declaratory judgment action. Absent argument to that effect, Ms. Rubin has not rebutted the presumption that the trial court properly entered a preliminary injunction on that basis. TOWN OF APEX V. RUBIN

Judges DILLON and JACKSON concur.