Savage Towing Inc. v. Town of Cary
814 S.E.2d 869
N.C. Ct. App.2018Background
- Savage Towing (Plaintiff) is a private towing company that tows from private lots in Cary and contracts with property owners to remove unauthorized vehicles.
- On Feb 23, 2017 Cary adopted an ordinance (Article IV, Ch. 20) regulating non-consensual towing from private parking lots: signposting, rapid reporting to police, response times, payment methods, access to personal property, secured storage within 15 miles, and civil/criminal penalties.
- Plaintiff filed a verified complaint and sought a preliminary injunction (May 15, 2017) challenging the ordinance as facially unconstitutional (due process and equal protection) and ultra vires; the trial court denied the injunction on May 30, 2017.
- The ordinance went into effect June 1, 2017. Plaintiff appealed the interlocutory denial and sought supersedeas/stays, which this Court denied.
- On appeal the parties and Court treated Plaintiff’s challenge as facial; the Court considered whether it had jurisdiction to hear the interlocutory appeal (whether a substantial right was affected) and evaluated Plaintiff’s due process and equal protection claims only to the extent necessary for jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of a preliminary injunction is immediately appealable (jurisdiction/interlocutory) | Denial affects substantial rights because enforcement of the ordinance will irreparably harm Plaintiff’s constitutional rights | Order is interlocutory and not certified under Rule 54(b); no substantial right is presently deprived | No jurisdiction: appeal dismissed for lack of an immediately appealable order |
| Whether the ordinance deprives Plaintiff of due process (procedural) | Civil and criminal penalties, plus 72‑hour payment rule, deprive Plaintiff of prior notice and hearing | Ordinance does not strip procedural safeguards; Plaintiff can refuse to pay and litigate in court; criminal process remains available | Plaintiff failed to show denial of injunction will deprive it of due process rights now; no jurisdictional harm shown |
| Whether the ordinance violates equal protection by exempting certain tows (public/PD-initiated) | Ordinance discriminates and targets particular towing companies (including Plaintiff) | Ordinance classifies by property/situation (private vs public; law‑enforcement removals), not by towing companies; exemptions are legitimate | On its face the ordinance classifies conduct/situations, not companies; Plaintiff did not show denial of injunction harms an equal protection right |
| Proper scope of challenge (facial vs as-applied) | Counsel initially referenced as-applied claims but Plaintiff’s filings press a facial challenge | Town treats it as a facial challenge on appeal | Court treats the challenge as facial and evaluates jurisdiction accordingly |
Key Cases Cited
- QSP, Inc. v. Hair, 152 N.C. App. 174 (2002) (appeal of ruling on preliminary injunction is interlocutory)
- Bessemer City Express, Inc. v. City of Kings Mountain, 155 N.C. App. 637 (2002) (no substantial-right deprivation where ordinance was not yet in effect at time of injunction request)
- Goldston v. American Motors Corp., 326 N.C. 723 (1990) (two-part test for substantial rights: right must be substantial and deprivation must potentially work injury before final judgment)
- Sharpe v. Worland, 351 N.C. 159 (1999) (due process is a substantial right)
- Dept. of Transp. v. Rowe, 353 N.C. 671 (2001) (equal protection guarantees under state and federal constitutions)