State ex. rel City of Charlotte v. Hidden Valley Kings

NO. COA14-72
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
On Relation of CITY OF
CHARLOTTE, a Municipal
Corporation,
Plaintiff-Appellee,
v. Mecklenburg County
No. 13-CVS-14502
HIDDEN VALLEY KINGS aka
HVK or ICEE MONEY, WENDELL
McCAIN, KEVIN FUNDERBURK
and CORDELL BLAIR,
Defendants-Appellants.
Appeal by Defendant Kevin Funderburk from preliminary
injunction entered 26 August 2013 by Judge Richard D. Boner in
Superior Court, Mecklenburg County. Heard in the Court of
Appeals 3 June 2014.
Charlotte-Mecklenburg Police Department, by Assistant City
Attorney Richard R. Perlungher and Deputy City Attorney
Mark H. Newbold, for Plaintiff-Appellee.
Arnold & Smith, PLLC, by L. Bree Laughrun and Kyle Frost,
for Defendant Kevin Funderburk.
McGEE, Judge.
The State of North Carolina, on relation of the City of
Charlotte, (“Plaintiff”) filed a complaint and motion for
preliminary and permanent injunction against Hidden Valley
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Kings, also known as HVK or ICEE Money, Wendell McCain, Kevin
Funderburk, and Cordell Blair (together, “Defendants”) on 12
August 2013. In its complaint, Plaintiff cited N.C. Gen. Stat.
§§ 14-50.41 et seq., the “North Carolina Street Gang Nuisance
Abatement Act” (hereinafter “the Act”) and N.C. Gen. Stat. § 19-
2.1, which provides for an action for abatement of a nuisance.
The Act provides: (1) that a gang that regularly engages in
criminal street gang activities constitutes a public nuisance,
(2) that a trial court may enter an order enjoining a defendant
from engaging in criminal street gang activity, and (3) that a
trial court may “impose other reasonable requirements to prevent
the defendant or a gang from engaging in future criminal street
gang activities.” N.C. Gen. Stat. § 14-50.43(b),(c) (2013).
The trial court held a hearing on Plaintiff’s motion for
preliminary injunction on 22 August 2013. Counsel for both
Plaintiff and for Defendant Kevin Funderburk (hereinafter
“Defendant Funderburk”) were present and gave arguments to the
trial court. The trial court found that Plaintiff had “no
adequate remedy at law to prohibit” Defendants from “associating
together for the purpose of regularly engaging in criminal
street gang activity.” The trial court further found that,
without a preliminary injunction, Plaintiff and citizens and
residents of the Hidden Valley Neighborhood and greater
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Charlotte area would “suffer irreparable harm from the criminal
street gang activity regularly engaged in by” Defendants. The
trial court also found that Plaintiff “demonstrated a likelihood
of success on the merits of the case.”
The trial court ordered that Defendants were restrained and
enjoined from the following:
a. Engaging in criminal street gang activity
as defined in North Carolina Gen. Stat.
§ 14-50.16(c);
b. Driving, standing, sitting, walking,
gathering or appearing, anywhere in public
view or any place accessible to the public
within Mecklenburg County, with any member
of the HVK gang that he or she knows to be a
member of the HVK gang, including but not
limited to those members identified by name
in this Preliminary Injunction, except when
directly traveling to or from the following
locations and where their presence is
required: (1) inside a school or other
educational facility where they are
attending a class or on school business;
(2) inside a church or other place of
worship; (3) at a location where they are
actively engaged in a legitimate business,
employment, trade, training, profession or
occupation; or, (4) at a location where they
are attending counseling sessions or
community meetings at community centers or
other established organizations;
c. Confronting, intimidating, annoying,
harassing, threatening, challenging,
provoking, assaulting or battering any
person that he or she knows to be a witness
to any criminal street gang activity of HVK,
to be a victim of any criminal street gang
activity of HVK, or to have complained about
any criminal street gang activity of HVK;
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d. Possessing any firearm, imitation
firearm, ammunition, or deadly weapon,
knowingly remaining in the presence of
anyone who is in possession of such firearm,
imitation firearm, ammunition or illegal
weapon, or knowingly remaining in the
presence of such firearm, imitation firearm,
ammunition or illegal weapon, anywhere in
public view or any place accessible to the
public;
e. Knowingly remaining in the presence of
anyone who is in possession of any illegal
drugs, narcotics or paraphernalia;
f. Recruiting, soliciting, enticing, or
encouraging individuals to join HVK or to
perform any acts that will support HVK or
its members;
g. Taking any action that prevents a member
from leaving HVK, including, but not limited
to, threatening or intimidating by any
means, the person attempting to leave HVK or
any member of that person’s family or
friends;
h. Participating in the unlawful possession,
use or sale of any controlled substance as
defined by state or federal law or the
possession or use of any drug paraphernalia;
and,
i. Being present on or in any private
property within Mecklenburg County not open
to the general public with any person that
he or she knows to be a member of the HVK
gang, including, but not limited to, those
members identified by name in this
Preliminary Injunction, except when the
members are relatives of the same family and
are on or in private property of a family
member they share in common.
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Defendant Funderburk appeals from the entry of the above
preliminary injunction.
We first address whether this appeal must be dismissed as
premature. “A preliminary injunction is an interlocutory
order.” Looney v. Wilson, 97 N.C. App. 304, 307, 388 S.E.2d
142, 144 (1990). There is no immediate right of appeal from an
interlocutory order unless the order affects a substantial
right. N.C. Gen. Stat. §§ 1-277, 7A-27(b)(3) (2013).
Issuance “of a preliminary injunction cannot be appealed
prior to final judgment absent a showing that the appellant has
been deprived of a substantial right which will be lost should
the order ‘escape appellate review before final judgment.’”
Clark v. Craven Regional Medical Authority, 326 N.C. 15, 23, 387
S.E.2d 168, 173 (1990) (quoting State v. School, 299 N.C. 351,
358, 261 S.E.2d 908, 913 (1980)). “If no such right is
endangered, the appeal cannot be maintained.” School, 299 N.C.
at 358, 261 S.E.2d at 913. In School, the defendants offered
“no evidence of any substantial right which will be irrevocably
lost if the state’s entitlement to the preliminary injunction is
not now reviewed.” Id. The order in School restrained the
defendants “from operating day-care centers without complying
with the licensing requirements of the [Day-Care Facilities]
Act.” Id. Our Supreme Court held that the defendants’
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contention that “compliance with the Act’s requirements violates
their constitutionally guaranteed religious freedoms goes to the
heart of their legal challenge to the application of the Act
itself and must await resolution at the final hearing when all
the facts upon which such resolution must rest can be fully
developed.” Id.Our Supreme Court further stated that its “refusal to allow
[the] defendants’ appeal is not a surrender to technical
requirements of finality.” Id. “The statutes and rules
governing appellate review are more than procedural niceties.
They are designed to streamline the judicial process, to
forestall delay rather than engender it.” Id. “‘There is no
more effective way to procrastinate the administration of
justice than that of bringing cases to an appellate court
piecemeal through the medium of successive appeals from
intermediate orders.’” Id. (quoting Veasey v. Durham, 231 N.C.
357, 363, 57 S.E.2d 377, 382 (1950)); see also Barnes v. St.
Rose Church of Christ, 160 N.C. App. 590, 586 S.E.2d 548 (2003).
In the present case, Defendant Funderburk offered in his
brief that there is “no evidence of any substantial right which
will be irrevocably lost if the state’s entitlement to the
preliminary injunction is not now reviewed.” School, 299 N.C.
at 358, 261 S.E.2d at 913. As discussed above, the “rule
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forbidding interlocutory appeals is designed to promote judicial
economy by eliminating the unnecessary delay and expense of
repeated fragmentary appeals and by preserving the entire case
for determination in a single appeal from a final judgment.”
Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 146 (1982).
“Additionally, appellate courts are almost always better able to
decide the legal issues when they have before them a fully
developed record.” Id.The record before this Court contains only a brief
transcript of the short hearing before the trial court and an
affidavit from a detective with the Charlotte-Mecklenburg Police
Department Gang Unit. Defendant Funderburk offered no evidence
during the hearing before the trial court. Defendant Funderburk
has not argued any substantial right that will be irrevocably
lost if the preliminary injunction is not now reviewed, and his
appeal is dismissed.
Dismissed.
Judges ELMORE and McCULLOUGH concur.