King v. Orr

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 plaintiffsappellants. -2Murchison, 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 potentially give rise inconsistent to duplicative results. In litigation this case, with however, plaintiffs have failed to show that there is a possibility of inconsistent plaintiffs results have failed absent to immediate establish any appeal. other Because basis for appellate jurisdiction over this interlocutory order, we dismiss the appeal. -3Facts This concerning appeal the arises King family out of cemetery a long-standing that is property of defendants Robert and Marianne Orr. dispute located on the 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 otherwise sold. has since been divided among his heirs or 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 -4result 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 proceeding"), seeking an before pursuant order the to N.C. allowing clerk of Gen. court Stat. plaintiffs to § (the "special 65-75 (2005),1 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. that defendants property bought interests of their The complaint alleged property plaintiffs subject including (1) to several 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 plaintiffs Eden's to Landing, access the and (3) cemetery. the statutory The rights complaint of 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). -5gate 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" -6in 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. at *19. Id., 2011 WL 532295 at *7, 2011 N.C. App. LEXIS 221 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. WL 532295 at *8, 2011 N.C. App. LEXIS 221 at *21-22. Id., 2011 However, this Court remanded for a determination regarding whether the -7Kings 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 title to Tract Six." Id. property prior to Defendants taking 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 -8interference 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 ordered 13 February that the 2012, special the clerk of court, sua proceeding be transferred sponte, 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. -9On 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 increase visiting hours to two hours. Map, and (3) to 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. until after Judge Spainhour deferred ruling on the motion 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. alleged that defendants had violated the 27 special proceeding order and the 7 August 2009 The motion November 2007 civil action summary judgment order, to the extent affirmed by the Court of Appeals, by (1) applying for and receiving consent from the -10Board 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 plaintiffs' September motion for 2012, Judge preliminary Phyllis injunction Gorham heard in civil the action and the parties' motions for and against granting the petition for writ of certiorari in 12 CVS 794. 2012, the trial court entered an order On 20 December 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' -11claim 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. -12In 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. motion for interlocutory Plaintiffs concede that the denial of a preliminary order is injunction one made is during interlocutory. the pendency "An 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 interlocutory orders and judgments." of immediate appeal from Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, -13immediate 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 appellant's burden quotation to marks present omitted). "[I]t appropriate grounds Court's acceptance of an interlocutory appeal[.]" is for the this 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. substantial right is 48, 542 affected S.E.2d because 227 the (2001), appeal that raises a 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 -14may 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." S.E.2d at 231. Id. at 51, 542 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). Partnerships, preliminary applying injunction McCallum, affected held a that substantial a N.C. Farm denial right of and a 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 estoppel. injunction under the doctrine of collateral 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 -15necessarily 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). affected "so as to permit Rather, a substantial right is 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 interlocutory of the 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. showing. 2 Plaintiffs have failed to make the necessary Contrary to the cases allowing interlocutory appeals 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. -16based 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 resolve the remaining issues on remand. the parties would 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. motion for preliminary Whether or not immediate review of the 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. -17Plaintiffs do not and cannot contend that the issues to be decided at subject plaintiffs plaintiffs that in trial this to have already relitigation. appeal does not been decided The have relief any and would sought effect on by 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 immediate appeal. existence of a substantial right warranting 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. -18Plaintiffs contend that immediate review is necessary because defendants have obtained permission from the Board to disinter and remove the graves from their property. ruling on the motion for a preliminary However, in 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 defendants the may opinion move the would resolve cemetery, the which question is the whether 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. therefore, dismissed. Dismissed. Judges STEPHENS and ERVIN concur. Plaintiffs' appeal is, -19Report per Rule 30(e).

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