King v. Orr

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 plaintiffs-

appellants.

-2-

Murchison, 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 give rise to duplicative litigation with

potentially inconsistent results. In this case, however,

plaintiffs have failed to show that there is a possibility of

inconsistent results absent immediate appeal. Because

plaintiffs have failed to establish any other basis for

appellate jurisdiction over this interlocutory order, we dismiss

the appeal.

-3-

Facts

This appeal arises out of a long-standing dispute

concerning the King family cemetery that is located on the

property of defendants Robert and Marianne Orr. 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 has since been divided among his heirs or

otherwise sold. 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

-4-

result 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 before the clerk of court (the "special

proceeding"), pursuant to N.C. Gen. Stat. § 65-75 (2005),1

seeking an order allowing plaintiffs to 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. The complaint alleged

that defendants bought their property subject to several

property interests of plaintiffs including (1) 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 Eden's Landing, and (3) the statutory rights of

plaintiffs to access the cemetery. The complaint 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).

-5-

gate 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"

-6-

in 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. Id., 2011 WL 532295 at *7, 2011 N.C. App. LEXIS 221

at *19. 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. Id., 2011

WL 532295 at *8, 2011 N.C. App. LEXIS 221 at *21-22. However,

this Court remanded for a determination regarding whether the

-7-

Kings 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 property prior to Defendants taking

title to Tract Six." Id. 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

-8-

interference 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 13 February 2012, the clerk of court, sua sponte,

ordered that the special proceeding be transferred 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.

-9-

On 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 Map, and (3) to

increase visiting hours to two hours. 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. Judge Spainhour deferred ruling on the motion

until after 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. The motion

alleged that defendants had violated the 27 November 2007

special proceeding order and the 7 August 2009 civil action

summary judgment order, to the extent affirmed by the Court of

Appeals, by (1) applying for and receiving consent from the

-10-

Board 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 September 2012, Judge Phyllis Gorham heard

plaintiffs' motion for preliminary injunction in the civil

action and the parties' motions for and against granting the

petition for writ of certiorari in 12 CVS 794. 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[.]" 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'

-11-

claim 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.

-12-

In 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. Plaintiffs concede that the denial of a

motion for preliminary injunction is interlocutory. "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, 362, 57 S.E.2d 377, 381 (1950).

"Generally, there is no right of immediate appeal from

interlocutory orders and judgments." Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,

-13-

immediate 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 quotation marks omitted). "[I]t 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 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. 48, 542 S.E.2d 227 (2001), that a

substantial right is affected because the appeal raises 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

-14-

may 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." Id. at 51, 542

S.E.2d at 231. 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). N.C. Farm

Partnerships, applying McCallum, held that a denial of a

preliminary injunction affected a substantial right and 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 injunction under the doctrine of collateral

estoppel. 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

-15-

necessarily 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). Rather, a substantial right is

affected "so as to permit 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 of the interlocutory 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. Plaintiffs have failed to make the necessary

showing. Contrary to the cases allowing interlocutory appeals

2

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.

-16-

based 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 the parties would

resolve the remaining issues on remand. 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. Whether or not immediate review of the

motion for preliminary 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.

-17-

Plaintiffs do not and cannot contend that the issues to be

decided at that trial have already been decided and would

subject plaintiffs to relitigation. The relief sought by

plaintiffs in this appeal does not have any effect on 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 existence of a substantial right warranting

immediate appeal. 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.

-18-

Plaintiffs contend that immediate review is necessary

because defendants have obtained permission from the Board to

disinter and remove the graves from their property. However, in

ruling on the motion for a preliminary 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 the opinion would resolve the question whether

defendants may move the cemetery, which is the 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. Plaintiffs' appeal is,

therefore, dismissed.

Dismissed.

Judges STEPHENS and ERVIN concur.

-19-

Report per Rule 30(e).