266 N.C. App. 271
N.C. Ct. App.2019Background
- Hubrich Contracting applied for a Minor Special-Use Permit to build a middle school in Durham County; the Durham City-County Board of Adjustment (BOA) granted the Permit on March 28, 2017.
- Neighbors (Coates et al.) petitioned Durham County Superior Court for certiorari review; the trial court held a hearing and took the matter under advisement.
- On August 28, 2018 the superior court reversed the BOA’s grant and remanded, directing the BOA to reopen public hearings and follow specified notice procedures.
- Hubrich appealed the superior court’s order to the Court of Appeals, treating the order as final and appealable.
- The Court of Appeals sua sponte examined appellate jurisdiction and whether the superior court order was interlocutory and affected a substantial right.
Issues
| Issue | Petitioners' Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether the superior court order is appealable | Remand preserves review by superior court and should stand; appeal not taken by petitioners | Hubrich argued the order was final and appealable under § 7A-27(b) | Order is interlocutory because it remanded to the BOA for further proceedings; not immediately appealable |
| Whether the order affects a substantial right so as to permit interlocutory appeal | (Not argued by petitioners) | Hubrich argued delay would cost time and relied on PHG Asheville precedent | Delay alone is not a substantial right; PHG Asheville distinguished because that case directed grant of permit, here remand left BOA decision open |
| Whether Rule 54(b) certification exists to permit immediate appeal | (Not argued) | Hubrich pointed to no Rule 54(b) certification in the order | No Rule 54(b) certification in the order; absent certification, interlocutory appeal requires showing a substantial right |
| Whether appellant satisfied Rule 28(b)(4) showing substantial right in brief | (Not applicable) | Hubrich failed in its brief to identify a substantial right as required by Rule 28(b)(4) | Failure to show a substantial right (and failure under Rule 28(b)(4)) mandates dismissal for lack of appellate jurisdiction |
Key Cases Cited
- Akers v. City of Mount Airy, 175 N.C. App. 777 (2006) (court must address jurisdictional issues sua sponte and remand-to-municipal-body orders are interlocutory)
- Cagle v. Teachy, 111 N.C. App. 244 (1993) (definition of interlocutory order)
- Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377 (1994) (burden on appellant to show interlocutory order affects a substantial right)
- Gilbert v. N.C. State Bar, 363 N.C. 70 (2009) (definition of "substantial right")
- PHG Asheville, LLC v. City of Asheville, 822 S.E.2d 79 (2018) (distinguished: superior court there ordered grant of permit, producing a final order)
- Larsen v. Black Diamond French Truffles, Inc., 241 N.C. App. 74 (2015) (Rule 28(b)(4) is jurisdictional in interlocutory appeals)
- Blackwelder v. Dep't of Human Resources, 60 N.C. App. 331 (1983) (avoidance of rehearing/trial is not a substantial right)
- Veazey v. Durham, 231 N.C. 357 (1950) (finality exists where remand directs grant of permit and leaves nothing for further judicial determination)