State Ex Rel. Rhodes v. Givens

400 S.E.2d 745 (1991)

101 N.C. App. 695

STATE of North Carolina ex rel. S. Thomas RHODES, Secretary, Department of Natural Resources and Community Development and David W. Owens, Director, Division of Coastal Management v. R.O. GIVENS, Sr. and R.O. Givens Signs, Inc.

No. 901SC562.

Court of Appeals of North Carolina.

February 19, 1991.

*746 Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. Robin W. Smith, Raleigh, for the State.

Shearin & Archbell by Roy A. Archbell, Jr., and Norman W. Shearin, Jr., Kitty Hawk, for defendants-appellants.

ORR, Judge.

The issue on appeal is whether the trial court erred in denying defendants' request for trial by jury. For the reasons set forth below, we affirm the order of the trial court denying defendants' request for trial by jury.

"An interlocutory order that denies a motion to deny a demand for jury trial affects a substantial right and is immediately appealable." State ex rel. Rhodes v. Simpson, 325 N.C. 514, 517, 385 S.E.2d 329, 331 (1989). Thus, defendants' appeal is properly before the Court.

Regarding the right to trial by jury, the North Carolina Constitution provides:

In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.

N.C. Const. art. I, § 25.

In Simpson, our Supreme Court stated:

This Court has construed the predecessor to section 25 to apply only to actions respecting property in which the right to jury trial existed either at common law or by statute at the time of the adoption of the 1868 Constitution. For causes of action created since 1868, the right to a jury trial depends upon statutory authority. In the absence of statutory authority, there is no right to the trial of a case before a jury where the legislature created the cause of action after adoption of the 1868 Constitution. [citations omitted]

325 N.C. at 517, 385 S.E.2d at 331.

In Simpson, the State brought an action to enjoin the dredge and fill activity pursuant to CAMA and the Dredge and Fill Act of 1969. There the State sought to require the defendant to comply with the permit requirements and restore marshlands. The Court held that "CAMA and the Dredge and Fill Act are recent creations of the Legislature such that the provisions of article I, section 25 of the state Constitution do not apply." Id. at 515-16, 385 S.E.2d at 330. The Court also noted that neither at common law nor by statute by 1868 would the State's allegations have supported actions for damage to real estate or for nuisance. Id. at 519, 385 S.E.2d at 332. Therefore, the defendant was not entitled to trial by jury.

Defendants first contend that Simpson is distinguishable since here defendants have raised several affirmative defenses which existed in 1868 and thus defendants are not "exert[ing] any rights arising by virtue of CAMA." However, defendants cite no authority for this contention. The *747 right to a trial by jury is determined by whether the "right and remedy" existed in 1868 and here defendants have not raised any counterclaims. See Groves v. Ware, 182 N.C. 553, 109 S.E. 568 (1921).

Defendants further rely on the Simpson Court's statement that there the defendant "might have had a right to a jury trial upon proper allegation that the final order of the Commission constituted a taking." 325 N.C. at 520, 385 S.E.2d at 333. However, in Simpson the Court was referring to the takings remedy of N.C.Gen.Stat. § 113A-123(b) (1989), which does provide a trial by jury. Under the statute, any person owning land in an area affected by an order of the Commission may petition the Superior Court within 90 days for a determination as to whether he is the owner of the land and whether the order constitutes a taking without compensation. The statute provides for a jury trial on all issues of fact. However, defendants here did not proceed pursuant to the statute, and although they received notice 13 May 1987, they did not allege a taking until filing their answer 9 February 1988.

In summary, we conclude that the trial court did not err in denying the defendants a trial by jury.

Affirmed.

PHILLIPS and GREENE, JJ., concur.