holding that the two-month statute of limitations governing municipal ordinances did not bar the plaintiff’s cause of action “because [the ordinance at issue was] a subdivision ordinance rather than a zoning ordinance”
How later courts described this case
- holding that the two-month statute of limitations governing municipal ordinances did not bar the plaintiff’s cause of action “because [the ordinance at issue was] a subdivision ordinance rather than a zoning ordinance”
- applying the ten-year statute of limitations set out in N.C.G.S. § 1-56 to a claim for the recovery of unlawful school impact fees
- noting that for state constitutional violations the limitations period is determined by the statute of limitations encompassing the claim at issue
- “Substantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious[.]” (emphasis added)
Written by the judges who cited it.
The opinion
JACKSON, Judge,
dissenting.
Although I agree with the reasoning in the majority opinion, because I believe this appeal is interlocutory, I would vote to dismiss.
As the majority notes, in most circumstances, an interlocutory order is not immediately appealable. Goldston v. American Motors Corp., 326 N.C. 723, 725 , 392 S.E.2d 735, 736 (1990). However, our legislature has created two exceptions to this general rule: (1) pursuant to Rule 54(b), “if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal” and (2) “ ‘if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.’ ” Bartlett v. Jacobs, 124 N.C. App. 521, 524 , 477 S.E.2d 693, 695 (1996) (quoting N.C. Dep’t of Transp. v. Page, 119 N.C. App. 730, 734 , 460 S.E.2d 332, 334 (1995)).
Although 54(b) provides the trial court with the authority to certify a case for immediate appeal, this Court has emphasized that the trial court’s certification of an appeal pursuant to Rule 54(b) does not deprive this Court of its role in determining whether the appeal is properly before us or not. As this Court has explained, “the trial court’s determination that there is no just reason to delay the appeal, while accorded great deference, cannot bind the appellate courts because ruling on the interlocutory nature of appeals is properly a *67 matter for the appellate division, not the trial court.” First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C. App. 242, 247 , 507 S.E.2d 56, 60 (1998) (citations and quotation marks omitted). See, e.g., Cagle v. Teachy, 111 N.C. App. 244, 247 , 431 S.E.2d 801, 803 (1993) (“[A] trial court cannot by denominating its decision a ‘final judgment’ confer appeal status under Rule 54(b) if its ruling is not indeed such a judgment.” (citation omitted)). Therefore, it is incumbent upon the parties also to articulate how they will be deprived of a substantial right in the absence of immediate review when the matter is not before us as the result of a final judgment. See First Atl. Mgmt., Corp., 131 N.C. App. at 247 , 507 S.E.2d at 60 .
Here, the Town of Cary has done no more than make- the bare assertion that this matter has been “certified by the trial court for review in this Court pursuant to N.C.R. Civ. P. 54(b)” and accordingly, jurisdiction is proper. Without more, I must vote to dismiss, although I agree with the reasoning set forth in the majority opinion.