             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-1298

                               Filed: 16 July 2019

Durham County, No. 17 CVS 2906

RHONDA COATES, TIMOTHY ELLIS, PATRICK and MARIE MAHONEY,
KENNETH PRICE, BRYAN and ANGELA SARVIS, JAMES VENTRILLA, and
JAMES WOLAK, Petitioners

            v.

DURHAM COUNTY, a North Carolina County, and HUBRICH CONTRACTING,
INC., a North Carolina Corporation, Respondents


      Appeal by Respondent Hubrich Contracting, Inc. from Order entered 28

August 2018 by Judge G. Bryan Collins in Durham County Superior Court. Heard

in the Court of Appeals 8 May 2019.


      Brown & Bunch, PLLC, by LeAnn Nease Brown, for petitioners-appellees.

      Morningstar Law Group, by Jeffrey L. Roether and Patrick L. Byker, for
      respondent-appellant Hubrich Contracting, Inc.


      HAMPSON, Judge.


      Hubrich Contracting, Inc. (Respondent) appeals from an Order reversing the

decision of the Durham City-County Board of Adjustment (BOA) to grant a Minor

Special-Use Permit (Permit) to Respondent. We, however, determine the Order that

Respondent appeals from is an interlocutory order that does not affect a substantial

right of Respondent. Therefore, we dismiss this appeal.

                     Factual and Procedural Background
                               COATES V. DURHAM CTY.

                                  Opinion of the Court



      On 7 November 2016, Respondent commenced this proceeding by filing an

application for the Permit with the Durham City-County Planning Department,

which Permit would allow Respondent to construct a middle school on certain

property in Durham County. Following a hearing before the BOA on 28 February

2017, the BOA issued an order granting the Permit on 28 March 2017. On 25 April

2017, Rhonda Coates, Timothy Ellis, Patrick and Marie Mahoney, Kenneth Price,

Bryan and Angela Sarvis, James Ventrilla, and James Wolak (Petitioners) petitioned

the Durham County Superior Court for review by way of a writ of certiorari. The

Durham County Superior Court granted Petitioners’ petition on 25 April 2017 and

ordered a hearing.

      The hearing occurred on 11 September 2017, and after the hearing concluded,

the presiding judge took the matter under advisement. On 28 August 2018, the trial

court entered its Final Order and Judgment (Order). In its Order, the trial court

reversed the BOA’s decision to grant the Permit to Respondent and remanded the

matter to the BOA with instructions to, inter alia, reopen the public hearing on

Respondent’s application for the Permit. Respondent appeals from this Order.

                                    Jurisdiction

      Although neither party raises this issue, we must address whether this appeal

is properly before this Court. See Akers v. City of Mount Airy, 175 N.C. App. 777, 778,

625 S.E.2d 145, 146 (2006) (“[When faced with] a jurisdictional issue, this Court has



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                                   Opinion of the Court



an obligation to address the issue sua sponte regardless [of] whether it is raised by

the parties.” (citation omitted)).    Indeed, Respondent contends as grounds for

appellate review that the Order “is a final judgment . . . and therefore is appealable

to the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b).” We disagree.

      “An interlocutory order . . . is one made during the pendency of an action which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Cagle v. Teachy, 111 N.C. App. 244,

247, 431 S.E.2d 801, 803 (1993) (citation omitted).

          [T]his Court has consistently held that an order by a superior
          court, sitting in an appellate capacity, that remands to a
          municipal body for additional proceedings is not immediately
          appealable. See, e.g., Heritage Pointe Builders[ v. N.C. Licensing
          Bd. of General Contractors], 120 N.C. App. [502,] 504, 462 S.E.2d
          [696,] 698 (1995) (appeal of superior court’s remand to a licensing
          board for rehearing dismissed as interlocutory); Jennewein v. City
          Council of the City of Wilmington, 46 N.C. App. 324, 326, 264
          S.E.2d 802, 803 (1980) (appeal of superior court’s remand to a city
          council for a de novo hearing dismissed as interlocutory).

Akers, 175 N.C. App. at 779-80, 625 S.E.2d at 146-47 (appeal of superior court’s

remand to a board of commissioners for further proceedings dismissed as

interlocutory).

      Here, Respondent appeals from an Order reversing the BOA’s decision to grant

Respondent the Permit. In its Order, the trial court instructs the BOA to reopen the

public hearing on Respondent’s application for the Permit after following certain

notice procedures and orders the BOA to conduct a new hearing on Respondent’s


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                                   Opinion of the Court



application.   Because this Order “remands to a municipal body for additional

proceedings[,]” this appeal is interlocutory. See id. (citations omitted).

      A party may appeal an interlocutory order if either: (1) the trial court certifies

there is no just reason to delay appeal under N.C. Gen. Stat. § 1A-1, Rule 54(b) or (2)

if delaying the appeal would affect a substantial right. Jeffreys v. Raleigh Oaks Joint

Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations omitted). Here,

the trial court’s Order does not contain a Rule 54(b) certification; therefore, we

consider whether the Order affects a substantial right of Respondent.

      A substantial right has consistently been defined as “a legal right affecting or

involving a matter of substance as distinguished from matters of form: a right

materially affecting those interests which one is entitled to have preserved and

protected by law: a material right.” Gilbert v. N.C. State Bar, 363 N.C. 70, 75, 678

S.E.2d 602, 605 (2009) (citation, quotation marks, and brackets omitted). The burden

is on the appellant to establish that “the order deprives the appellant of a substantial

right which would be jeopardized absent a review prior to a final determination on

the merits.” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (citation and quotation

marks omitted). Further, “[i]t is not the duty of this Court to construct arguments

for or find support for [the] appellant’s right to appeal from an interlocutory order[.]”

Id. at 380, 444 S.E.2d at 254 (citations omitted).




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                               COATES V. DURHAM CTY.

                                  Opinion of the Court



      As discussed supra, Respondent’s appeal is interlocutory, and in its brief,

Respondent offers no substantial right that would be affected absent a review prior

to a final determination on the merits.      However, Rule 28(b)(4) of our Rules of

Appellate Procedure requires that “[w]hen an appeal is interlocutory, the statement

[of the grounds for appellate review in the appellant’s brief] must contain sufficient

facts and argument to support appellate review on the ground that the challenged

order affects a substantial right.” N.C.R. App. P. 28(b)(4). Our Court has noted that

in the context of interlocutory appeals, a violation of Rule 28(b)(4) is jurisdictional

and requires dismissal. See Larsen v. Black Diamond French Truffles, Inc., 241 N.C.

App. 74, 77-78, 772 S.E.2d 93, 96 (2015) (“[W]hen an appeal is interlocutory, Rule

28(b)(4) is not a ‘nonjurisdictional’ rule. Rather, the only way an appellant may

establish appellate jurisdiction in an interlocutory case (absent rule 54(b)

certification) is by showing grounds for appellate review based on the order affecting

a substantial right.”).

      At oral argument, when confronted with the possibility that this Order was

interlocutory, Respondent offered two arguments in support of finding a substantial

right. Respondent first contended that “it [was] simply a matter of time” that would

be lost if its appeal was dismissed.      However, our Court has recognized that

“avoidance of a rehearing or trial is not a ‘substantial right’ entitling a party to an




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                                   Opinion of the Court



immediate appeal.” Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335,

299 S.E.2d 777, 780 (1983) (citation omitted).

      Respondent next asserted that PHG Asheville, LLC v. City of Asheville, ___

N.C. App. ___, 822 S.E.2d 79 (2018), requires us to address the merits of this appeal

because, according to Respondent, that case involved an appeal from a superior court

order reversing a city council’s decision to deny the petitioner’s application for a

conditional-use permit and our Court reached the merits of the appeal. However,

Respondent overlooks a crucial distinction between PHG Asheville, LLC and the case

sub judice. In PHG Asheville, LLC, the City of Asheville appealed the superior court’s

order “conclud[ing] the [c]ity’s decision to deny [p]etitioner a [conditional-use permit]

was arbitrary and capricious, and [the superior court] reversed and remanded the

matter with an order to the [c]ity [c]ouncil to grant [p]etitioner’s requested

[conditional-use permit.]” Id. at ___, 822 S.E.2d at 83 (emphasis added). Therefore,

the superior court’s order in PHG Asheville, LLC was a final order because it directed

the city council to grant the conditional-use permit, which “[left] nothing to be

judicially determined between [the parties] in the [quasi-judicial proceeding].” See

Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations

omitted). Here, the trial court’s Order did not direct the BOA to either grant or deny

Petitioner’s application for the Permit; therefore, PHG Asheville, LLC is inapplicable.




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                              COATES V. DURHAM CTY.

                                  Opinion of the Court



      Consequently, because the trial court’s Order reversed the BOA’s grant of the

Permit and remanded the case to the BOA for further proceedings, this appeal is

interlocutory. Further, Respondent has failed to show that a substantial right would

be lost absent appeal. Therefore, we must dismiss this appeal. See Akers, 175 N.C.

App. at 779-80, 625 S.E.2d at 146-47 (citations omitted).

                                    Conclusion

      Accordingly, for the foregoing reasons, we dismiss the appeal for lack of

appellate jurisdiction.

      APPEAL DISMISSED.

      Judges STROUD and YOUNG concur.




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