King v. Pender Cnty.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-618
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
ROBERT KING, ANN KING, MARGARET
WHALEY and A. WILLIAM KING,
Petitioners,
v. Pender County
No. 12 CVS 794
PENDER COUNTY, MARIANNE
ORR and ROBERT ORR,
Respondents.
Appeal by petitioners 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 and Matthew W.
Buckmiller, for petitioners-appellants.
Carl W. Thurman III for respondent-appellee Pender County.
Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey; and
Law Offices of E. Holt Moore III, by E. Holt Moore, III for
respondents-appellees Marianne Orr and Robert Orr.
GEER, Judge.
Petitioners Robert King, Ann King, Margaret Whaley, and A.
William King (collectively "the Kings") appeal from an order
denying their petition for writ of certiorari to review the
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decision of the Pender County Board of County Commissioners to
grant consent to Marianne and Robert Orr to disinter and
relocate the King family cemetery located on the Orrs' property.
The order, however, leaves pending the Kings' request for a
declaratory judgment and its motion for preliminary injunction
and is, therefore, interlocutory. Because the Kings have failed
to show that the order affects a substantial right that would be
lost absent immediate review, we must dismiss this appeal as
interlocutory.
Facts
This matter arises out of a long-standing dispute
concerning the King family cemetery located on the Orrs'
property. A detailed factual background of the dispute 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 LEXIS 221 (2011) (unpublished) ("King I")
and in a related appeal filed contemporaneously with this case,
King v. Orr, COA13-621, ___ N.C. App. ___, ___ S.E.2d ___
(2014). The facts pertinent to this appeal are as follows.
The Orrs' 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. The Orrs purchased the property in 1990
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pursuant to a general warranty deed. The cemetery is a part of
the Orrs' yard and is directly across from their house.
The Orrs maintained the cemetery and allowed descendants 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 the Orrs and the Kings concerning
the type of fence to be erected around the cemetery. On 28
February 2005, without the Orrs' permission, Robert King entered
the property with a fence company and began installing a chain
link fence. The Orrs asked Mr. King to leave, but he refused.
The Orrs were forced to call the sheriff who asked Mr. King to
leave. As a result of this incident, the Orrs withdrew their
consent for the Kings to visit the cemetery and asked that
Robert King go before the Pender County Clerk to determine his
rights to the cemetery.
On 27 June 2005, the Kings filed a complaint initiating a
special proceeding ("the special proceeding"), pursuant to N.C.
Gen. Stat. § 65-75 (2005),1 seeking an order allowing the Kings
to enter the Orrs' property to restore, maintain, and visit the
cemetery and to erect a suitable fence around the cemetery.
On 2 July 2007, the Kings filed a second complaint ("the
civil action") seeking injunctive relief and a declaratory
1
This provision was repealed in 2007 and is now found in
N.C. Gen. Stat. § 65-102 (2013).
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judgment, as well as asserting alternative claims for breach of
contract and an action to quiet title. The complaint alleged
that the Orrs bought their property subject to several of the
Kings' property interests including (1) a 60-foot easement
running along the edge of the Orrs' property leading to the
cemetery, (2) a 12-foot road exception running along the western
edge of the Orrs' property to a point in Topsail Sound known as
Eden's Landing, and (3) the statutory rights of the Kings to
access the cemetery. The complaint alleged that the Orrs had
erected a gate that prevented the Kings from using the 60-foot
easement and the 12-foot exception and sought a permanent
injunction ordering the Orrs to remove the gate and to enjoin
and restrain the Orrs from interfering with the Kings' 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 the Kings are direct lineal
descendants of at least one person interred in the cemetery and
granting them 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 was finally determined in the civil action.
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Thereafter, litigation of the civil action continued and,
upon cross motions for summary judgment, the trial court entered
an order on 7 August 2009 granting summary judgment in favor of
the Kings. The Orrs appealed that order, which 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. King I affirmed the trial court's
ruling that Margaret Whaley possessed the right to use the 60-
foot easement and the court's rulings regarding the boundaries
of the cemetery. Id., 2011 WL 532295 at *8, 2011 N.C. App.
LEXIS 221 at *25. However, this Court remanded that case to the
trial court for a determination of (1) the ownership of the 12-
foot exception and (2) whether Robert, Ann, and A. William King
had acquired an easement by implication. Id., 2011 WL 532295 at
*9, 2011 N.C. App. LEXIS 221 at *23.
On 1 September 2011, several months after King I was filed,
Robert King and A. William King went to the Orrs' property to
stake out the 60-foot easement from Margaret Whaley's property
to the cemetery. They purported to be acting as agents of Ms.
Whaley, the only person whose right to use the easement was
judicially established by King I. They did not, however, offer
any documents to substantiate their claim to have authority to
act as Ms. Whaley's agent and indicated that their intent was to
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clear out an area that extended beyond the boundaries
established by King I. Ms. Orr, with the help of a deputy of
the Pender County Sheriff's Department, directed the Kings to
leave.
After this incident, the Orrs consulted with an
archaeological surveyor and with faculty from the North Carolina
School of Government to evaluate their options regarding the
cemetery. The Orrs learned that N.C. Gen. Stat. § 65-106(a)
(2013) provides a procedure by which any person "may effect the
disinterment, removal, and reinterment of graves." The
disinterment process may be effected "[b]y any person, firm, or
corporation who owns land on which an abandoned cemetery is
located after first securing the consent of the governing body
of the municipality or county in which the abandoned cemetery is
located." N.C. Gen. Stat. § 65-106(a)(4).
The Orrs decided to initiate the disinterment process and,
in the spring of 2012, the Orrs contacted the Pender County
Board of Commissioners to request consent to disinter the graves
and remove the cemetery from their property. On 21 May 2012,
the Board held a public hearing on the Orrs' request. Both the
Orrs and the Kings were represented by counsel at the hearing
and presented arguments to the Board. At the close of the
hearing, the Board deferred its decision on whether to grant
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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, on 23 July 2012, by a vote of
3-2, approved the Orrs' application to disinter the King Family
Cemetery.
On 10 August 2012, the Kings filed a petition for writ of
certiorari to review the decision of the Board, and, in the
alternative, a request for a declaratory judgment. On 28 August
2012, the Kings, in the same action, filed a motion for a
preliminary injunction to enjoin the Orrs from disinterring the
cemetery. On 29 August 2012, the Orrs responded by filing a
motion to deny issuance of a writ of certiorari on the ground
that the decision by the Board was not quasi-judicial in nature.
On 17 September 2012, the trial court heard the parties'
arguments regarding the issuance of a writ of certiorari in this
case, as well as several motions in the related civil proceeding
on remand from this Court. 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[.]" The Kings appealed this order to this Court.
Discussion
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As an initial matter, we must address whether we have
jurisdiction to hear this appeal. Although both parties seem to
assume that the denial of the petition for writ of certiorari
was a final judgment, "[a] final judgment is one which disposes
of the cause as to all the parties, leaving nothing to be
judicially determined between them in the trial court. 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, 361–62, 57 S.E.2d 377, 381 (1950) (internal
citation omitted).
In this case, a review of the record reveals that the trial
court's order is interlocutory. The Kings' pleading filed in
superior court included both a petition for writ of certiorari
and a "CLAIM FOR RELIEF," seeking, in the alternative, a
declaratory judgment pursuant to N.C. Gen. Stat. § 1-253 et seq.
"[i]n the event it is determined that the decision by the Pender
County Commissioners is a 'legislative' decision . . . ."
Additionally, on 28 August 2012, the Kings filed a motion for a
preliminary injunction seeking to enjoin the Orrs from taking
any action to disinter the graves until the issues raised by
their complaint had been resolved.
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At the 17 September 2012 hearing, counsel for the Kings
stated that "all we're here today to do is to bring up the
record of the proceedings before the Pender County Board of
Commissioners such that a review of those proceedings by way of
certiorari or declaratory judgment, which we have also sought,
can be heard at another time." (Emphasis added.) The Kings'
counsel later clarified further that
[t]here is an alternative cause of
action pled, and this does not go to the
issuance of the writ of certiorari. The
certiorari is only on the first claim for
relief, not on the second. The second claim
for relief alleges that the Court can
appropriately resolve the matter under the
declaratory judgment act on the theory that
the action is legislative in nature.
The trial court's order denying issuance of the writ of
certiorari on the basis that the Board's action was not quasi-
judicial in nature thus triggered the need to address the Kings'
alternative claim for relief. Because the order made no ruling
with respect to the Kings' request for declaratory judgment or
their motion for preliminary injunction, those claims remain
pending and require further action by the trial court. The
order is, therefore, interlocutory.
"Ordinarily, there is no right of immediate appeal from an
interlocutory order." Johnson v. Lucas, 168 N.C. App. 515, 518,
608 S.E.2d 336, 338, aff'd per curiam, 360 N.C. 53, 619 S.E.2d
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502 (2005). However, an interlocutory order "is immediately
appealable if (1) the order is final as to some claims or
parties, and the trial court certifies pursuant to N.C.G.S. §
1A-1, Rule 54(b) that there is no just reason to delay the
appeal, or (2) the order deprives the appellant of a substantial
right that would be lost unless immediately reviewed." Myers v.
Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002).
Here, the trial court made no Rule 54(b) certification, and
the Kings have made no attempt to argue that the denial of the
petition for writ of certiorari affects a substantial right that
would be lost without an interlocutory appeal. In their
Statement of the Grounds for Appellate Review, the Kings state
only: "Judge Gorham's Order denying issuance of a Writ of
Certiorari is a final judgment and appeal therefore lies to the
Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b)."
Although all the parties acknowledge that the Kings sought both
a petition for writ of certiorari and, in the alternative, a
request for a declaratory judgment, the record contains no
indication that the declaratory judgment claim for relief has
been resolved, and the Kings have provided no explanation why
this Court has jurisdiction over the interlocutory order denying
the petition for writ of certiorari.
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It is well established that "it 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 the Kings have failed to meet this burden, we dismiss
this appeal as interlocutory.
Dismissed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).