An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-817
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


ROBERT A. BELL and
JOAN A. BELL,
          Plaintiffs,

      v.                                      Craven County
                                              No. 12 CVS 1410
CITY OF NEW BERN and
TOWN OF TRENT WOODS,
          Defendants.


      Appeal by defendant Town of Trent Woods from order entered

17 January 2013 by Judge Benjamin G. Alford in Craven County

Superior Court.       Heard in the Court of Appeals 11 December 2013.


      Kirkman, Whitford, Brady, Berryman & Farias, P.A., by Neil
      B. Whitford and Jane A. Gordon, for plaintiffs-appellees.

      Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T.
      Simpson and Natalia K. Isenberg, for defendant-appellee,
      City of New Bern.

      Turrentine Law Firm, PLLC, by S. C. Kitchen, for defendant-
      appellant, Town of Trent Woods.


      GEER, Judge.


      Defendant Town of Trent Woods appeals from an order denying

its motion to dismiss the claims of Robert A. Bell and Joan A.

Bell for inverse condemnation, negligence, nuisance, trespass,
                                        -2-
and   a   permanent     injunction,     arising        out   of    flooding         damage

allegedly caused by the construction of a sewer pump station on

an intense watershed overflow lot and inadequate storm drain

pipes.     To the extent that Trent Woods argues on appeal that

plaintiffs have failed to state a claim for relief, we dismiss

the   appeal   as    interlocutory      and     not    affecting        a   substantial

right.

      With respect to Trent Woods' claim that it is entitled to

governmental        immunity,    a     review     of     plaintiffs'           complaint

establishes that the actions giving rise to plaintiffs' claims

involve the negligent maintenance of Trent Woods' storm drainage

system.     Because it is well established that municipalities are

not performing governmental acts when maintaining storm drains,

governmental    immunity        does   not    apply,     and      the       trial   court

properly    denied    the   motion     to    dismiss     based     on       governmental

immunity.

                                       Facts

      In 2002, defendant City of New Bern and Trent Woods entered

into an agreement entitled "TRENT WOODS SEWER COLLECTION SYSTEM

AGREEMENT" ("the 2002 Agreement").                Under the 2002 Agreement,

New Bern agreed to finance the construction of a sewer system

for the residents of Trent Woods with an installment loan, and

Trent Woods agreed to reimburse New Bern.                    The system was to be
                                          -3-
built pursuant to the plans of the Project Engineer, Rivers and

Associates,       Inc.,     and   "with       input   and   approval"       from   Trent

Woods.      Once construction was complete, New Bern would bill

Trent Woods residents directly.                 In consideration for New Bern's

sewer collection and treatment service, Trent Woods agreed to

waive its right to receive $50,000.00 per year for eight years

from New Bern as required by a previous agreement between New

Bern and Trent Woods.

    As part of the construction of the sewer system, New Bern

purchased lots 4, 5, and 6 of the Greenside Subdivision in Trent

Woods from G. Brant Cooper and Nancy E. Cooper for $150,000.00.

New Bern purchased these lots subject to restrictive covenants

in the lots' deed that the lots "shall be utilized as an intense

watershed        overflow     and       are     currently        not   approved      for

development."        Additionally, Trent Woods imposed conditions on

the developer that "[n]o pipe shall be placed in main drainage

ditch with a diameter less than 40" (inches)."                         As part of the

purchase    of    the     lots,   New    Bern    agreed     to    install    a   42-inch

drainage tile which would run from the end of Greenside Court

underneath Country Club Road to a canal.

    In the fall of 2004, New Bern completed construction of a

sewer pump station on lot 4 of the Greenside Subdivision, which

it operates and maintains.                In constructing the pump station,
                                                  -4-
New     Bern    increased            the     elevation      of     lot     4,     brought       in

approximately 9,700 cubic feet of fill, and clear cut trees from

the lot in violation of the restrictive covenants.                                     By July

2010, New Bern had not fulfilled its obligation under the 2002

Agreement to install the 42-inch drainage pipe.

       On 13 July 2010,                Trent Woods         entered into an agreement

("the    2010    Agreement")               with    New    Bern     that   New     Bern     would

transfer       lots    5       and   6     to     Trent    Woods.         As    part     of    the

consideration for the lots, Trent Woods released the City of New

Bern from any requirement to improve or maintain drainage in the

Greenside subdivision.                   Trent Woods further agreed to obtain

easements for drainage and agreed to indemnify New Bern for

liability       arising          out        of    any     obligation           regarding       the

construction      of       a    storm       drainage      system    as    provided       in    the

purchase contract from the developer.                            Trent Woods also agreed

to release to New Bern the sum of $150,000.00, which was the

amount held by Trent Woods as "retainage for the sewer project,"

as a final payment for the cost of the sewer system.

       Plaintiffs own a house located in the Greenside Subdivision

of    Trent    Woods,      approximately            600   feet     from    the    sewer       pump

station.       On or about 28-30 September 2010, during heavy rains

from Tropical Storm Nicole, plaintiffs' property was flooded,

causing $50,000.00 in property damage.                       On or about 26-28 August
                                        -5-
2011, plaintiffs' property was again flooded during Hurricane

Irene,    causing    additional      damages     of       $52,000.00.      Prior   to

September 2010, plaintiffs' property had never flooded.

      Plaintiffs filed suit against New Bern and Trent Woods on

26   September     2012    asserting    claims      for    inverse     condemnation,

negligence,      nuisance,     trespass,      and     a    permanent    injunction.

Trent Woods filed a Motion to Dismiss on 19 October 2012 with a

supporting affidavit contending that Trent Woods did not have

insurance     to    cover    plaintiffs'      claims        and,   therefore,      was

entitled to governmental immunity.

      On 22 October 2012, plaintiffs filed their first amended

complaint alleging a waiver of sovereign immunity.                      Trent Woods

filed a second motion to dismiss on 14 November 2012 alleging

sovereign     immunity,       lack     of   personal        and    subject   matter

jurisdiction, failure to state a claim, and failure to join a

necessary party.          The trial court denied Trent Woods' Motion to

Dismiss in an order entered on 22 January 2013.                         Trent Woods

appealed the 22 January 2013 order to this Court.

                            Motion to Dismiss Appeal

      We first address plaintiffs' motion to dismiss Trent Woods'

appeal.     Trent Woods' appeal of the trial court's order denying

the motion to dismiss is interlocutory.                   "An interlocutory order

is one made during the pendency of an action, which does not
                                        -6-
dispose of the case, but leaves it for further action by the

trial   court   in   order    to    settle        and      determine     the     entire

controversy."     Veazey v. City of Durham, 231 N.C. 357, 362, 57

S.E.2d 377, 381 (1950).

    "Generally,      there   is    no     right      of    immediate    appeal       from

interlocutory orders and judgments."                      Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).                          However,

an appeal from an interlocutory order is permissible "if (1) the

trial court certified the order under Rule 54(b) of the Rules of

Civil Procedure, or (2) the order affects a substantial right

that would be lost without immediate review."                    Boyd v. Robeson

Cnty., 169 N.C. App. 460, 464, 621 S.E.2d 1, 4 (2005).                         "[I]t is

the appellant's burden to present appropriate grounds for this

Court's acceptance of an interlocutory appeal[.]"                        Jeffreys v.

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d

252, 253 (1994).     The record here does not, of course, contain a

Rule 54(b) certification, and therefore the burden is on Trent

Woods, as the appellant, to show that the interlocutory order

affected    a   substantial       right       that    would     be     lost     without

immediate review.

    Trent Woods moved to dismiss the claims for negligence,

nuisance,   trespass,   and   a     permanent         injunction       based    on    the

defense of governmental immunity.               It is well established that
                                             -7-
"'[t]he denial of a motion to dismiss based upon the defense of

sovereign    immunity         affects    a    substantial         right       and    is   thus

immediately appealable.'"               Carl v. State, 192 N.C. App. 544,

550, 665 S.E.2d 787, 793 (2008) (quoting RPR & Assocs. v. State,

139 N.C. App. 525, 527, 534 S.E.2d 247, 250 (2000), aff'd per

curiam, 353 N.C. 362, 543 S.E.2d 480 (2001)).                           Thus, denial of

Trent    Woods'    motion       to      dismiss         based    on    the     defense      of

governmental immunity is properly before us.

      Additionally, Trent Woods has sought immediate review of

the     denial    of    its     motion       to    dismiss        plaintiffs'         inverse

condemnation      claim,       which    was       not    based    on    the     defense     of

sovereign immunity.            Chapter 40A of the North Carolina General

Statutes governs the procedure for inverse condemnation actions,

N.C. Gen. Stat. § 40A-51 (2013), and provides for a bifurcated

process.     First, under N.C. Gen. Stat. § 40A-47 (2013), the

judge must "hear and determine any and all issues raised by the

pleadings other than the issue of compensation, including, but

not limited to, the condemnor's authority to take, questions of

necessary and proper parties, title to the land, interest taken,

and area taken."             Then, if the judge determines that a taking

has   occurred,        the    parties     proceed        to     the    second       stage   to

determine how much compensation is due.                         N.C. Gen. Stat. § 40A-

49 (2013).
                                 -8-
      This Court has held that N.C. Gen. Stat. § 40A-47 orders,

although interlocutory, affect a substantial right warranting an

immediate appeal because "[i]t would be an act of futility and

injurious to the interests of [a government] to otherwise compel

it to proceed through trial on the issue of damages if the trial

court's initial determination that a taking had occurred was in

error."   Concrete Mach. Co. v. City of Hickory, 134 N.C. App.

91, 96, 517 S.E.2d 155, 158 (1999).       See also City of Winston-

Salem v. Slate, 185 N.C. App. 33, 37, 647 S.E.2d 643, 646 (2007)

(holding N.C. Gen. Stat. § 40A-47 order resolving all issues

except issue of just compensation was immediately appealable as

affecting substantial right).

      Trent Woods equates the denial of its motion to dismiss the

inverse condemnation claim to an order pursuant to N.C. Gen.

Stat. § 40A-47.      However, unlike a N.C. Gen. Stat. § 40A-47

order, denial of a motion to dismiss does not determine any of

the   merits   of   the   underlying   inverse   condemnation   claim.

Furthermore, denying immediate review does not result in forcing

the parties to proceed on the issue of compensation even though

there may have been no taking.         Trent Woods has provided no

persuasive reason that the order in this case should be treated

like a § 40A-47 order for purposes of an interlocutory appeal.

Because Trent Woods has not identified any other substantial
                                           -9-
right that may be lost absent immediate appeal, we dismiss that

portion of Trent Woods' appeal.

                                     Discussion

      Trent Woods argues that the trial court erred in denying

its   motion     to     dismiss     plaintiffs'     claims     for    negligence,

nuisance,    trespass,       and    permanent     injunction    because     it   is

entitled    to   governmental        immunity.      Plaintiffs       counter   that

Trent Woods is not entitled to governmental immunity because it

was engaged in a proprietary function, and, to the extent that

Trent Woods' actions may be considered governmental, Trent Woods

waived its immunity by purchasing liability insurance.

      We review the denial of a motion to dismiss based on the

defense of governmental immunity de novo.                 White v. Trew, 366

N.C. 360, 362-63, 736 S.E.2d 166, 168 (2013).                        Additionally,

when reviewing Rule 12(b)(1) motions, we may consider and weigh

matters outside the pleadings.               Williams v. Devere Constr. Co.,

215 N.C. App. 135, 138, 716 S.E.2d 21, 25 (2011).

      "Governmental immunity prevents municipal corporations from

being sued when they act in a governmental capacity, but does

not apply to actions which are proprietary."                   Kizer v. City of

Raleigh, 121 N.C. App. 526, 527, 466 S.E.2d 336, 337 (1996).

Therefore, "'[a]pplication of the doctrine depends upon whether

the   activity        out   of     which    the   tort   arises      is   properly
                                -10-
characterized    as   governmental   or   proprietary   in   nature.'"

Williams, 215 N.C. App. at 138-39, 716 S.E.2d at 26 (quoting

Bostic Packaging, Inc. v. City of Monroe, 149 N.C. App. 825,

826–27, 562 S.E.2d 75, 77 (2002)).

    Trent Woods argues that plaintiffs' claims arise out of the

establishment and construction of a sewer system and, therefore,

involve governmental actions.     Plaintiffs, however, contend that

their claims are based on Trent Woods' maintenance of a storm

drainage system and, therefore, involve non-governmental -- or

proprietary -- actions not entitling Trent Woods to governmental

immunity.

    As an initial matter, we believe it is worth observing:

                 Our courts have long noted that drawing
            the line between municipal operations which
            are   proprietary   and    subject   to   tort
            liability   versus   operations    which   are
            governmental and immune from such liability
            is a difficult task.    Millar v. Wilson, 222
            N.C. 340, 23 S.E.2d 42 (1942) (noting that
            maintenance of public roads and highways is
            recognized as governmental while imposing
            liability on a municipality for negligent
            failure to keep its streets and sidewalks in
            reasonably safe condition as an "illogical"
            but uniformly applied exception); Sides v.
            [Cabarrus Mem'l Hosp. Inc.], 287 N.C. 14,
            213 S.E.2d 297 (1975) (First, noting that
            courts have applied one classification to an
            activity in general while applying the
            opposite classification to certain phases of
            the same activity; Second, noting that
            courts    have    applied     a    proprietary
            classification to the exact activities that
            courts   have  previously    determined   that
                                            -11-
            expenditures   for    such   activities,   e.g.
            airports, garbage removal and public parks,
            are   for    a   public    purpose.).       The
            "application     of      the     [governmental-
            proprietary distinction] to given factual
            situations has resulted in irreconcilable
            splits of authority and confusion as to what
            functions    are    governmental     and   what
            functions are proprietary."     Koontz v. City
            of Winston-Salem, 280 N.C. 513, 186 S.E.2d
            897 (1972).

Pulliam    v.    City     of    Greensboro,      103    N.C.     App.     748,    751,     407

S.E.2d 567, 568 (1991).

    As     the     parties'         arguments    demonstrate,         courts      in     North

Carolina have treated municipal action involving a city's sewer

system    differently          than     municipal    action       involving       a    city's

storm drainage system.                When it comes to drainage systems, this

Court     has    adopted        a      bright-line      rule     that      "storm        drain

maintenance does not enjoy governmental immunity."                               Kizer, 121

N.C. App. at 528, 466 S.E.2d at 338.                          When it comes to sewer

systems, on the other hand, the classification of the activity

as governmental or proprietary is not as cut and dried.

    "Historically,              the       establishment,          construction,            and

maintenance       of     a     sewer    system     by     a    municipality        for     its

residents was a governmental function . . . ."                             Williams, 215

N.C. App. at 139, 716 S.E.2d at 26.                     However, "[i]n more recent

cases     before        this    Court,      recognizing         the     development        of

municipal       sewer    services        provided    by       privately    owned       public
                                          -12-
utility companies, we have declined to grant immunity on the

sole basis that sewer service was provided by a municipality."

Id. at 140, 716 S.E.2d at 26.              Now, the focus has shifted to the

commercial aspect of the activity.                 "Although a 'profit motive'

is   not     dispositive      in    determining       whether        an    activity   is

governmental or proprietary in nature, see Schmidt [v. Breeden,

134 N.C. App. 248, 253, 517 S.E.2d 171, 175 (1999)], '[c]harging

a substantial fee to the extent that a profit is made is strong

evidence that the activity is proprietary.'"                     Bostic Packaging,

149 N.C. App. at 827, 562 S.E.2d at 77 (quoting Hare v. Butler,

99 N.C. App. 693, 699, 394 S.E.2d 231, 235 (1990)).

      Here, plaintiffs allege that their property was flooded due

to   the    construction      of   a     sewer   pump      station    on    an   intense

watershed     overflow       lot   in    their   subdivision         and   due   to   the

inadequacy        of   the   18-inch     pipe    in   the    main     drainage     ditch

running from lots 4, 5, and 6 of the subdivision to the nearby

canal.      Trent Woods did not own, operate, or construct the lot 4

sewer      pump    station.        The    extent      of    Trent     Woods'     actions

regarding the sewer system was to reimburse New Bern for the

cost of its development and construction -- an action which, in

and of itself, did not form the basis of plaintiffs' claims

against Trent Woods.

      Instead, plaintiffs based their claims on the allegations
                                            -13-
that Trent Woods assumed responsibility to improve and maintain

the    storm   drain    system       on    the    lots    purchased        for    the   sewer

system.        As    part    of     its    drainage          plan   for     the    Greenside

subdivision, Trent Woods had imposed restrictive covenants on

lots 4, 5, and 6 that required the lots to be utilized as an

"intense watershed overflow."                 The construction by New Bern of

the    sewer   pump    on    lot    4     altered      the    natural      storm   drainage

patterns in the subdivision, and Trent Woods failed to remediate

the drainage problems by replacing the 18-inch culvert under

Country Club Road with a 42-inch culvert, despite having assumed

the duty to do so when it accepted the transfer of ownership of

lots 5 and 6.          We conclude that Trent Woods' actions in this

case involved its failure to maintain its storm drainage system.

Therefore,      under       Kizer,        Trent       Woods    is    not     entitled      to

governmental immunity.

       Nevertheless, Trent Woods argues that it is entitled to

governmental        immunity      because     the      culvert      under    Country     Club

Road is part of the state highway system, and, therefore, it is

the State's responsibility.                See Milner Hotels, Inc. v. City of

Raleigh, 271 N.C. 224, 226, 155 S.E.2d 543, 545 (1967) ("[T]he

Highway    Commission          is    under        a    statutory      obligation         with

reference to the construction, maintenance and repair of all

city    streets,      including      culverts         which    support      city    streets,
                                       -14-
which constitute a part of the State Highway system.").                    Trent

Woods contends that under Colombo v. Dorrity, 115 N.C. App. 81,

86, 443 S.E.2d 752, 756 (1994), governmental immunity applies to

the negligent maintenance of streets and culverts that are a

part of the State Highway system, even when the city has assumed

a contractual duty to maintain the culvert.

       Trent Woods misconstrues the holding of Colombo.              The issue

in    Colombo   was    whether   the   City    of   Durham   was   entitled   to

immunity     for   negligently     failing     to    clear   vegetation    that

obscured a stop sign on a street that was a part of the state

highway system, but ran within the municipal limits of the City

of Durham.      Id. at 82, 443 S.E.2d at 754.

       The plaintiff argued that the case fell within the common

law   exception    to   the   doctrine    of   governmental     immunity   that

applies when "a municipality creates a dangerous condition in

its streets that proximately causes injury to a person using the

street."     Id. at 85, 443 S.E.2d at 755.            This Court determined

that the common law exception did not apply because the street

in question, although within the municipal limits of the city of

Durham, was a part of the state highway system and not the

city's street.        Id. at 86, 443 S.E.2d at 756.          Although the City

of Durham had contracted with the State to maintain the street,

the contract did not change the status of the street as part of
                                     -15-
the state highway system.      Id.     Because the common law exception

only waived immunity when the municipality creates a dangerous

condition on its own street, the exception did not apply in that

case, and the City was entitled to immunity.               Id.    Colombo's

limited holding has no application to this case.

      Trent Woods also argues that it is entitled to immunity

because the 2010 Agreement with New Bern was void under N.C.

Gen. Stat. § 159-28(a) (2013).          In support of this contention,

Trent Woods cites Data Gen. Corp. v. Cnty. of Durham, 143 N.C.

App. 97, 103, 545 S.E.2d 243, 247-48 (2001), which held that

Durham County was entitled to immunity for Data General's breach

of contract claim because the contract was invalid under N.C.

Gen. Stat. § 159-28(a).       The holding in Data General was based

on the rule that "'whenever the State of North Carolina, through

its   authorized   officers   and     agencies,   enters   into   a   valid

contract, the State implicitly consents to be sued for damages

on the contract in the event it breaches the contract.'"              Data

General, 143 N.C. App. at 102, 545 S.E.2d at 247 (quoting Smith

v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24 (1976)).

      Here, in contrast to the facts of Data General, Trent Woods

is not being sued for breach of contract, and therefore the

validity of the 2010 Agreement has no bearing on whether Trent

Woods is entitled to governmental immunity.           To the extent the
                                      -16-
validity of the 2010 Agreement is relevant to showing that Trent

Woods assumed a duty to maintain the culverts, that issue goes

to   the    merits    of   plaintiffs'     claims,   which    is   not   properly

before us.

      In conclusion, we hold that the trial court did not err in

denying Trent Woods' motion to dismiss based on the defense of

governmental         immunity.       Because     plaintiffs'       claims    for

negligence, nuisance, trespass, and a permanent injunction arose

out of Trent Woods' actions in failing to maintain its storm

drain      system,   Trent   Woods   was    acting   in   a   non-governmental

capacity and is not entitled to sovereign immunity.                  Because of

this holding, we need not address whether Trent Woods waived

immunity by purchasing insurance coverage.


      Affirmed in part; dismissed in part.

      Judges BRYANT and CALABRIA concur.

      Report per Rule 30(e).
