Coastal Ready-Mix Concrete Co. v. North Carolina Coastal Resources Commission

ORR, Judge. Respondent appeals from two orders, bringing forward three assignments of error. Because we find that both of the orders from which respondent appeals are interlocutory and because we find that respondent does not have the right to an immediate appeal from these [122] orders, we need not address respondent’s assignments of error. Accordingly, we dismiss respondent’s appeals. Both orders from which Respondent CRC appeals reserve the “takings” issue for another proceeding. Thus, these orders do not dispose of the entire case, and are, therefore, interlocutory. See Donnelly v. Guilford County, 107 N.C. App. 289, 291, 419 S.E.2d 365, 366 (1992) (citation omitted); See also Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (“An order is interlocutory ‘if it does not determine the issues but directs some further proceeding preliminary to final decree.’ ”) (citation omitted). Further, the trial court did not certify that there existed no just reason to delay the appeal as required by N.C.R. Civ. P. 54(b); CRC is not, therefore, entitled to immediately appeal from these orders unless the orders deprive CRC “of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Southern Uniform Rentals, Inc. v. Iowa Nat’l Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988); N.C. Gen. Stat. § 1-277; See Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). Essentially a two-part test has developed to determine whether an interlocutory order affects a substantial right — “the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment.” Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). This test “is more easily stated than applied,” and in determining whether interlocutory orders are appealable, the court “must consider the particular facts of each case and the procedural history of the order from which an appeal is sought.” Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992) (citations omitted). .First, we will address whether CRC had the right to immediately appeal the trial court’s denial of its motion for summary judgment on the “takings” issue. Ordinarily, the denial of a motion for summary judgment does not affect a substantial right so that an appeal may be taken. . . . [I]n case a substantial right is thought to be affected to the prejudice of the movant, then a petition for a writ of certiorari is available. To allow an appeal from a denial of a motion for summary judg123 merit would open the flood gate of fragmentary appeals and cause a delay in administering justice. Motyka v. Nappier, 9 N.C. App. 579, 582, 176 S.E.2d 858, 859 (1970); See also Hill v. Smith, 38 N.C. App. 625, 626, 248 S.E.2d 455, 456 (1978) (“Generally, orders denying motions for summary judgment are not appealable.”) In the present case, the record does not reveal that a substantial right is involved that would be prejudiced absent immediate appeal. Accordingly, we hold that CRC’s appeal from the denial of its summary judgment motion should be dismissed. See Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 164, 265 S.E.2d 240, 242, disc. review allowed, appeal dismissed, 301 N.C. 92 (1980). Next, we address CRC’s appeal from the order affirming the denial of petitioners’ application for a mining permit and transferring the “takings” issue to the Dare County Superior Court trial docket. At the outset we note that CRC does not have the right to appeal from the portion of the order affirming the denial of petitioners’ permit, as this was the relief which CRC sought, and “[o]nly the party aggrieved by a judgment may appeal.” Carawan v. Tate, 304 N.C. 696, 700, 286 S.E.2d 99, 101 (1982) (citation omitted). CRC appeals, however, from the portion of the order in which the trial court held, “No findings contained within the order of the North Carolina Coastal Resources Commission referenced above shall be binding on [p]etitioner at said jury trial.” Further, CRC contends that it is entitled to an immediate appeal from this portion of the order to avoid the relitigation of factual issues pertaining to the “takings” issue which were determined by the Commission in its final decision. We disagree. “We agree that ‘the right to avoid the possibility of two trials on the same issues can be ... a substantial right.’ ” Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (emphasis in original). Such is not, however, the case here. In the present case, the Commission concluded in its final order that the takings issue was not properly before it and limited its decision to the issue of whether the denial of petitioners’ application for a CAMA minor development permit was proper. The sole issue left to be tried, as stated by the trial court, however, is whether “the application of the Jockey’s Ridge State Park Area of Environmental Concern to [petitioners’ property constitutes a ‘taking.’ ” Thus we do not agree with CRC’s contention. [124] Further, our review of this appeal shows no substantial right that CRC will lose absent the right to an immediate appeal. CRC may preserve its right to appeal from the trial court’s order in this case following entry of a final judgment upon proper exception. Accordingly, we dismiss CRC’s appeal from the trial court’s second order. Dismissed. Judges COZORT and MARTIN concur.