John M. Dolven, M.D. (“Dolven”) appeals from the trial court’s order entered in this action commenced by High Rock Lake Partners, LLC (“High Rock”) against the North Carolina Department of Transportation (“DOT”). Dolven’s appeal from that order, in which the trial court denied Dolven’s motion to intervene or be joined as a party and remanded the matter to the DOT for further proceedings, is interlocutory. Only the denial of Dolven’s motion to intervene or be joined as a party is properly before this Court, and as to that issue, we believe that a substantial right will be affected absent immediate appellate review. Because Dolven, as the current owner of the property for which the permit at issue is sought, is the real party in interest, we reverse the trial court’s denial of his motion to be joined as a party.
With respect to the merits of the trial court’s order, because Dolven was not a party to the action below, he lacks standing to appeal the trial court’s rulings on the merits of High Rock’s petition. Nevertheless, since the trial court did not join the real party in interest — Dolven—before addressing the merits, we must set aside the order and remand for an order joining Dolven as a party and for reconsideration of the petition for judicial review.
Facts
High Rock is a real estate development company based in Mecklenburg County, North Carolina. On 12 August 2005, HCL Partnership, LLP, the predecessor entity to High Rock, bought a parcel of land totaling approximately 188 acres near High Rock Lake in Davidson County, North Carolina for $5,200,000.00. Financing for the purchase price was secured by three deeds of trust, including a first deed of trust held by Dolven.
The property is located on a peninsula jutting out into High Rock Lake, which is situated to the south and east of a railroad crossing. The only means of ingress and egress onto the peninsula from the mainland is by way of a 14-foot-wide road that runs across the rail
road tracks. That road is SR 1135 and is part of the North Carolina highway system maintained by the DOT. North
On 9 September 2005, High Rock submitted an application to Davidson County for preliminary plat approval of a 60-home subdivision to be developed on the property. On 20 September 2005, the Davidson County Planning and Zoning Board (“the Planning Board”) conducted a meeting regarding the preliminary plat. Representatives from Norfolk appeared at the meeting to voice their opposition to the development, questioning the safety of the railroad crossing on SR 1135 located 1/4 mile from the proposed entrance to the development.
On 4 October 2005, the Planning Board met to consider approval of the preliminary plat. At the meeting, DOT representative Danny Gilbert voiced the DOT’s opposition to the development. Gilbert recommended that the County require High Rock to build a bridge or grade separation at the railroad crossing due to safety issues resulting from (1) the high speed and number of trains crossing the location, (2) the hump station causing blocking of the crossing, and (3) the increased traffic on SR 1135 because of the proposed development. A representative from Norfolk also opposed the development, citing safety concerns related to trains blocking the crossing, train horn noise, and the potential for increased trespassers at the hump station. The Planning Board subsequently voted to deny the preliminary plat.
High Rock appealed the decision to the Davidson County Board of Commissioners, which conducted a public hearing on the appeal on 7 November 2005. At the hearing, DOT representatives and Norfolk again spoke in opposition to the development, with the DOT recommending that County approval of the plat be conditioned on High Rock building a bridge at the railroad crossing. On 12 December 2005, the Board of Commissioners reconvened the public hearing and approved the preliminary plat based on High Rock’s meeting all of the County’s requirements for subdivision approval.
On 6 October 2005, High Rock submitted to the DOT a driveway permit application seeking to extend the end of SR 1135 in order to create an access to the development. On 12 December 2005, the DOT sent High Rock a letter informing it that the driveway permit application had been denied because SR 1135 was too narrow to accommodate additional traffic from the development, and the parties could not agree as to any widening improvements.
On 11 January 2006, High Rock appealed the DOT’s initial decision to deny the driveway permit to Pat Ivey, the DOT Division Engineer. On 3 March 2006, Ivey approved the driveway permit subject to certain conditions. In essence, Ivey ruled that High Rock was required to widen the railroad crossing to allow safe passage of two-way traffic on the road. Ivey said this would require High Rock to (1) “[o]btain all required licenses and approvals from the owning railroad, NCRR, to widen the crossing and approaches on their right of way”; and (2) “[o]btain all necessary agreements and approvals from the operating railroad, Norfolk Southern Railway Company (NSR), necessary to revise and acquire the automatic flashers, gates and enhanced devices that will enable the crossing to remain at the current ‘Sealed Corridor’ level of safety consistent with the USDOT designation of the corridor for development of high-speed intercity passenger rail service.” Ivey directed that “[a]ll expenses and costs associated with the subject improvements shall be borne by the applicant.”
On 30 March 2006, High Rock appealed Ivey’s decision to the DOT Driveway Permit Appeals Committee. On 12 June 2006, the Appeals Committee upheld the conditions set forth in Ivey’s letter. On 12 July 2006, High Rock filed a petition for judicial review in Davidson County Superior Court. The trial court dismissed High Rock’s petition with prejudice on 13 September 2007, and on 17 September 2007, High Rock re-filed its petition in Mecklenburg County Superior Court.
The trial court entered an order on 24 July 2008 and an amended order on 26 August 2008 in which it denied the motion for joinder/intervention. The court explained that “High Rock’s attempt to assign its claim for relief to Dr. Dolven is contrary to the anti-assignment provisions of G.S. § 143B-426.40A(b) and that, pursuant to that statute, any attempt to assign this claim to Dr. Dolven is void.”
The court concluded that the portion of the Final Agency Decision that conditioned receipt of the driveway permit on High Rock’s obtaining licenses and approvals from the owning and operating railroads was an unlawful delegation of the determination of the permit application. It reasoned that such a condition unlawfully left to the discretion of the railroads the decision whether or not the necessary licenses and approvals would be issued. The court, therefore, ordered those conditions stricken and remanded the case to the Appeals Committee “for purposes of entering an amended order that determines whether or not to issue a Driveway Permit with respect to this property and, if such Permit is to issue, to determine and specify what, if any[,] conditions are to be attached to the issuance of the Permit.” The trial court stated: “Any conditions specified must be articulated by the agency issuing the decision and not left to the discretion of any third party.”
The trial court authorized the Appeals Committee on remand to consider additional evidence as necessary to determine what could reasonably be required of High Rock by the railroads and to specify those requirements as conditions of the permit. The court stated:
The Court’s intent is that, at the hearing upon remand, the Committee should consider all pertinent evidence, including evidence of what improvements need to be made for a safe crossing. The Committee would then have authority to deny the application, grant the application without conditions, or grant the application subject to whatever conditions Respondent determines necessary, but the conditions cannot be contingent upon approval of any third party. In other words, whatever steps are necessary to complete the process need to be fully investigated and determined during the hearing process with the Committee.
The court then held that “[a]s to all other aspects of the case, the Court is ruling in favor of the Department.” The court concluded: “This matter be, and hereby is, remanded to the Department for consideration, consistent with this Court’s order, of whether to deny the Application for Driveway Permit, grant the Application, or grant the Application conditioned upon the satisfaction of any lawfully specified conditions, but any conditions imposed must be determined by and specified with particularity by the Department rather than by a third party[.]”
Finally, the trial court stated that it was certifying its order for immediate review under Rule 54(b), explaining:
In making this certification, this Court fully recognizes that it ultimately will be for the appellate courts to determine whether or not this order constitutes a final order. It is the intent of this court, however, that this order operates as a final determination of the issues of the statutory authority of the Department'of Transportation to require improvements at the railroad crossing in connection with the issuance of the permit and the unlawful delegation of decision making authority to a third party.
Dolven gave notice of appeal on 15 September 2008.
As an initial matter, we must address the interlocutory nature of the trial court’s order, as it presents a jurisdictional issue.
Akers v. City of Mount Airy,
Akers
involved an almost identical situation. In
Akers,
Under
Akers, Heritage Pointe,
and
Jennewein,
this appeal is, therefore, interlocutory. An interlocutory order may be immediately appealed in only two circumstances: (1) when the trial court, pursuant to N.C.R. Civ. P. 54(b), enters a final judgment as to one or more but fewer than all of the claims or parties and certifies that there is no just reason to delay the appeal; or (2) when the order deprives the appellant of a substantial right that would be lost absent appellate review prior to a final determination on the merits.
Jeffreys v. Raleigh Oaks Joint Venture,
The trial court, in this case, included language in the order purporting to certify it for immediate appeal under Rule 54(b). The appellate courts are not, however, bound by a trial court’s determination that Rule 54(b) applies.
See Dep’t of Transp. v. Olinger,
Our courts have stressed that “a Rule 54(b) certification is effective to certify an otherwise interlocutory appeal
only
if the trial court has entered a final judgment with regard to a party or a claim in a case which involves multiple parties or multiple claims.”
CBP Res., Inc. v. Mountaire Farms of N.C., Inc.,
High Rock no longer owns the property for which the permit is sought. It, therefore, has no reason to pursue the permit on remand from the trial court. Moreover, High Rock’s continued pursuit of the permit could well be dismissed as moot.
See Messer v. Town of Chapel Hill,
“Our jurisprudence regarding the substantial right analysis is not defined by fixed rules applicable to all cases of a certain type, but rather is based on an individual determination of the facts and procedural context presented by each case.”
Boyce & Isley, PLLC v. Cooper,
Turning to the merits of the trial court’s decision on the intervention/] oinder motion, we first address the trial court’s determination that Dolven should not be made a party to this action because High Rock’s assignment to Dolven of the right to pursue the permit was invalid under N.C. Gen. Stat. § 143B-426.40A(b) (2009). N.C. Gen. Stat. § 143B-426.40A(b) provides:
Except as otherwise provided in this section, any assignment of a claim against the State is void, regardless of the consideration given for the assignment, unless the claim has been duly audited and allowed by the State and the State has issued a warrant for payment of the claim. Except as otherwise provided in this section, the State shall not issue a warrant to an assignee of a claim against the State.
After Dolven purchased the property, High Rock and Dolven entered into an agreement that provided:
To the extent allowed by law, for good and valuable consideration, HIGH ROCK LAKE PARTNERS, LLC does hereby assign, to JOHN DOLVEN, except as reserved below, its rights of appeal set forth in the Petition for Judicial Review (“Petition”) with the North Carolina Department of Transportation, et al as Respondents, filed in Mecklenburg County Superior Court on September 17, 2007, being File No. 07 CVS 18706, along with any and all rights and claims of ownership to the driveway permit application identified as Exhibit “I” to the Petition; the driveway permit, or decisions related thereto, being appealed identified as Exhibit “S” to the Petition; and any and all rights to receive governmental approvals, including a driveway permit, for the development identified in paragraph #10 of the Petition as 60 single family residential lots off SR 1135 on the Property described in Deed Book 1634, at Page 695, Davidson County Registry. The parties agree that High Rock Lake Partners, LLC reserves the right to remain a party in the Petition case in the event that an assignment of any of theforegoing approvals is not allowed under any applicable law and in order to protect its interests and standing in the damages case referenced below. Notwithstanding, the parties agree that Dolven have [sic] the sole and exclusive discretion in deciding any future use or sale of the property in question, including all rights to retain any profits associated therewith.
Whether this assignment is barred by N.C. Gen. Stat. § 143B-426.40A(b) depends on whether the subject of High Rock’s assignment is a “claim against the State.”
As this is a question of statutory interpretation, we review this argument de novo.
Brown v. Flowe,
Generally, a “claim” is defined as “[t]he assertion of an existing right; any right to payment or to an equitable remedy” or “[a] demand for money, property, or a legal remedy to which one asserts a right. . . .” Black’s Law Dictionary 281-82 (9th ed. 2004). The manner in which the phrase “claim against the State” is used in § 143B-426.40A(b) comports with such a definition of “claim” as an entitlement to a legal remedy. The statute specifies that any assignment of a claim against the State is void “unless the claim has been duly audited and allowed by the State and the State has issued a warrant for payment of the claim.” N.C. Gen. Stat. § 143B-426.40A(b) (emphasis added). Similarly, the statute defines “[assignment” as “[a]n assignment or transfer of a claim, or a power of attorney, an order, or another authority for receiving payment of a claim." N.C. Gen. Stat. § 143B-426.40A(a)(l) (emphasis added).
The two cases cited by DOT in its brief — the only authority construing N.C. Gen. Stat. § 143B-426.40A(b) or its predecessor — also indirectly support this construction. In
Ledbetter Bros., Inc. v. N.C. Dep’t ofTransp.,
In contrast, in
Bolton Corp. v. State,
Neither of these cases explicitly discusses what constitutes a “claim against the State.” Both cases, however, assumed that an assignment falling within the scope of N.C. Gen. Stat. § 143B-426.40A(b) would involve the transfer of a claim for legal relief — more specifically, a claim for payment of monetary damages — that would be sought in an adjudicative forum. High Rock’s application to obtain a driveway permit and subsequent appeal from the denial is not a demand for payment or other legal remedy from the DOT. Instead, High Rock was seeking appellate review of a decision made by the DOT in an administrative capacity. In fact, the assignment agreement specified that High Rock reserved the right to remain a party in the action to protect its claim to monetary
Since N.C. Gen. Stat. § 143B-426.40A(b) is inapplicable, we must determine whether Dolven was otherwise entitled to be joined or to intervene as a party. One of the bases for the motion was Rule 17(a) of the Rules of Civil Procedure, which requires that “[e]very claim shall be prosecuted in the name of the real party in interest . . . ,”
1
“ ‘The real party in interest is the party who by substantive law has the legal right to enforce the claim in question.’ ”
Whittaker v. Furniture Factory Outlet Shops,
Here, it is undisputed that Dolven is now the owner of the property, and High Rock no longer has any interest in that property. Only Dolven, as the owner, would benefit from a decision by the DOT allowing a driveway permit. High Rock has assigned all of its rights in the driveway permit application to Dolven, and Dolven has exclusive discretion to decide how to use the property. The DOT has not argued, apart from N.C. Gen. Stat. § 143B-426.40A(b), that this assignment of the driveway permit application is necessarily improper. Dolven is the only party who will be benefitted or injured by the decision on appeal in this case and is, therefore, the real party in interest.
See Land v. Tall House Bldg. Co.,
Rule 17(a) makes plain that the trial court should not have addressed the merits of the case without first allowing the real party in interest to be joined. It provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest[.]” In
Daniel v. Wray,
As in
Daniel,
where the trial court erred in ruling on the merits before permitting joinder, the trial court, in this case, erred in addressing the merits without first joining Dolven as aparty.
2
We cannot find this failure to join Dolven harmless because, since High Rock will not benefit if the driveway permit is allowed, there is no guarantee that High Rock will pursue the permit on remand or that the DOT would allow High Rock, a non-owner, to proceed with the application.
See Booker v. Everhart,
In
Bailey v. State,
The Court observed:
Rule 3 specifically designates that “any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal.” More specifically, only a “party aggrieved” may appeal a trial court order or judgment, and such a party is one whose rights have been directly or injuriously affected by the action of the court.
A careful reading of Rule 3 reveals that its various subsections afford no avenue of appeal to either entities or persons who are nonparties to a civil action. Therefore, as we have already determined that the Attorney General is not a party to the case sub judice, we can find no grounds on which to allow his appeal. Accordingly, as presented, it must be dismissed.
Id.
(internal citations omitted).
See also In re Brownlee,
Because Dolven was not a party below, he cannot appeal the trial court’s ruling on the merits of High Rock’s action. The decision below is, therefore, vacated,' and this matter is remanded for further proceedings in accordance with this opinion.
Vacated and remanded.