                                 NO. COA14-72

                     NORTH CAROLINA COURT OF APPEALS

                           Filed: 17 June 2014


STATE OF NORTH CAROLINA
On Relation of CITY OF
CHARLOTTE, a Municipal
Corporation,
     Plaintiff-Appellee,

    v.                                        Mecklenburg County
                                              No. 13-CVS-14502
HIDDEN VALLEY KINGS aka
HVK or ICEE MONEY, WENDELL
McCAIN, KEVIN FUNDERBURK
and CORDELL BLAIR,
     Defendants-Appellants.


    Appeal     by    Defendant    Kevin       Funderburk   from     preliminary

injunction entered 26 August 2013 by Judge Richard D. Boner in

Superior   Court,    Mecklenburg    County.        Heard   in   the   Court   of

Appeals 3 June 2014.


    Charlotte-Mecklenburg Police Department, by Assistant City
    Attorney Richard R. Perlungher and Deputy City Attorney
    Mark H. Newbold, for Plaintiff-Appellee.

    Arnold & Smith, PLLC, by L. Bree Laughrun and Kyle Frost,
    for Defendant Kevin Funderburk.


    McGEE, Judge.


    The State of North Carolina, on relation of the City of

Charlotte,    (“Plaintiff”)      filed    a    complaint      and   motion    for

preliminary    and   permanent     injunction       against     Hidden   Valley
                                             -2-
Kings, also known as HVK or ICEE Money, Wendell McCain, Kevin

Funderburk,      and    Cordell       Blair     (together,    “Defendants”)     on    12

August 2013.          In its complaint, Plaintiff cited N.C. Gen. Stat.

§§ 14-50.41 et seq., the “North Carolina Street Gang Nuisance

Abatement Act” (hereinafter “the Act”) and N.C. Gen. Stat. § 19-

2.1, which provides for an action for abatement of a nuisance.

The Act provides: (1) that a gang that regularly engages in

criminal street gang activities constitutes a public nuisance,

(2) that a trial court may enter an order enjoining a defendant

from engaging in criminal street gang activity, and (3) that a

trial court may “impose other reasonable requirements to prevent

the defendant or a gang from engaging in future criminal street

gang activities.”            N.C. Gen. Stat. § 14-50.43(b),(c) (2013).

    The trial court held a hearing on Plaintiff’s motion for

preliminary injunction on 22 August 2013.                          Counsel for      both

Plaintiff       and     for     Defendant       Kevin      Funderburk   (hereinafter

“Defendant Funderburk”) were present and gave arguments to the

trial   court.         The    trial     court      found   that   Plaintiff   had    “no

adequate remedy at law to prohibit” Defendants from “associating

together       for    the    purpose    of    regularly      engaging   in    criminal

street gang activity.”                 The trial court further found that,

without    a    preliminary       injunction,        Plaintiff    and   citizens     and

residents       of     the     Hidden     Valley      Neighborhood      and    greater
                               -3-
Charlotte area would “suffer irreparable harm from the criminal

street gang activity regularly engaged in by” Defendants.    The

trial court also found that Plaintiff “demonstrated a likelihood

of success on the merits of the case.”

    The trial court ordered that Defendants were restrained and

enjoined from the following:

         a. Engaging in criminal street gang activity
         as defined in North Carolina Gen. Stat.
         § 14-50.16(c);

         b. Driving, standing, sitting, walking,
         gathering or appearing, anywhere in public
         view or any place accessible to the public
         within Mecklenburg County, with any member
         of the HVK gang that he or she knows to be a
         member of the HVK gang, including but not
         limited to those members identified by name
         in this Preliminary Injunction, except when
         directly traveling to or from the following
         locations   and   where  their    presence  is
         required: (1) inside a school or other
         educational    facility    where    they   are
         attending a class or on school business;
         (2) inside a church or other place of
         worship; (3) at a location where they are
         actively engaged in a legitimate business,
         employment, trade, training, profession or
         occupation; or, (4) at a location where they
         are   attending    counseling    sessions   or
         community meetings at community centers or
         other established organizations;

         c.   Confronting,   intimidating,    annoying,
         harassing,      threatening,      challenging,
         provoking,   assaulting   or  battering    any
         person that he or she knows to be a witness
         to any criminal street gang activity of HVK,
         to be a victim of any criminal street gang
         activity of HVK, or to have complained about
         any criminal street gang activity of HVK;
                    -4-


d.   Possessing    any  firearm,    imitation
firearm,   ammunition,  or   deadly   weapon,
knowingly remaining in the presence of
anyone who is in possession of such firearm,
imitation firearm, ammunition or illegal
weapon,   or  knowingly  remaining   in   the
presence of such firearm, imitation firearm,
ammunition or illegal weapon, anywhere in
public view or any place accessible to the
public;

e. Knowingly remaining in the presence of
anyone who is in possession of any illegal
drugs, narcotics or paraphernalia;

f. Recruiting, soliciting, enticing, or
encouraging individuals to join HVK or to
perform any acts that will support HVK or
its members;

g. Taking any action that prevents a member
from leaving HVK, including, but not limited
to, threatening or intimidating by any
means, the person attempting to leave HVK or
any member of that person’s family or
friends;

h. Participating in the unlawful possession,
use or sale of any controlled substance as
defined by state or federal law or the
possession or use of any drug paraphernalia;
and,

i. Being present on or in any private
property within Mecklenburg County not open
to the general public with any person that
he or she knows to be a member of the HVK
gang, including, but not limited to, those
members   identified   by    name  in   this
Preliminary Injunction, except when the
members are relatives of the same family and
are on or in private property of a family
member they share in common.
                                           -5-
Defendant       Funderburk       appeals    from       the     entry       of    the   above

preliminary injunction.

       We first address whether this appeal must be dismissed as

premature.          “A   preliminary       injunction          is    an     interlocutory

order.”        Looney v. Wilson, 97 N.C. App. 304, 307, 388 S.E.2d

142, 144 (1990).         There is no immediate right of appeal from an

interlocutory       order    unless      the     order       affects       a    substantial

right.    N.C. Gen. Stat. §§ 1-277, 7A-27(b)(3) (2013).

       Issuance “of a preliminary injunction cannot be appealed

prior to final judgment absent a showing that the appellant has

been deprived of a substantial right which will be lost should

the    order    ‘escape     appellate      review       before       final      judgment.’”

Clark v. Craven Regional Medical Authority, 326 N.C. 15, 23, 387

S.E.2d 168, 173 (1990) (quoting State v. School, 299 N.C. 351,

358,    261    S.E.2d     908,    913    (1980)).            “If    no    such    right   is

endangered, the appeal cannot be maintained.”                            School, 299 N.C.

at 358, 261 S.E.2d at 913.                 In School, the defendants offered

“no evidence of any substantial right which will be irrevocably

lost if the state’s entitlement to the preliminary injunction is

not now reviewed.”            Id.       The order in School restrained the

defendants “from operating day-care centers without complying

with    the    licensing     requirements        of    the    [Day-Care         Facilities]

Act.”         Id.    Our    Supreme      Court        held    that       the    defendants’
                                              -6-
contention that “compliance with the Act’s requirements violates

their constitutionally guaranteed religious freedoms goes to the

heart of their legal challenge to the application of the Act

itself and must await resolution at the final hearing when all

the facts upon which such resolution must rest can be fully

developed.”         Id.

       Our Supreme Court further stated that its “refusal to allow

[the]     defendants’         appeal     is     not      a     surrender       to   technical

requirements        of    finality.”          Id.            “The     statutes      and    rules

governing appellate review are more than procedural niceties.

They    are    designed         to    streamline         the    judicial        process,        to

forestall delay rather than engender it.”                             Id.     “‘There is no

more    effective         way    to     procrastinate           the    administration           of

justice      than    that       of    bringing      cases      to     an    appellate      court

piecemeal      through          the    medium       of       successive        appeals         from

intermediate orders.’”                Id. (quoting Veasey v. Durham, 231 N.C.

357, 363, 57 S.E.2d 377, 382 (1950)); see also Barnes v. St.

Rose Church of Christ, 160 N.C. App. 590, 586 S.E.2d 548 (2003).

       In the present case, Defendant Funderburk offered in his

brief that there is “no evidence of any substantial right which

will    be    irrevocably        lost    if   the     state’s         entitlement         to   the

preliminary injunction is not now reviewed.”                               School, 299 N.C.

at   358,     261    S.E.2d      at    913.      As      discussed         above,   the    “rule
                                         -7-
forbidding interlocutory appeals is designed to promote judicial

economy    by   eliminating      the   unnecessary       delay   and   expense    of

repeated fragmentary appeals and by preserving the entire case

for determination in a single appeal from a final judgment.”

Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 146 (1982).

“Additionally, appellate courts are almost always better able to

decide    the   legal   issues    when    they    have    before    them   a   fully

developed record.”       Id.

    The     record      before    this    Court     contains       only    a   brief

transcript of the short hearing before the trial court and an

affidavit from a detective with the Charlotte-Mecklenburg Police

Department Gang Unit.          Defendant Funderburk offered no evidence

during the hearing before the trial court.                 Defendant Funderburk

has not argued any substantial right that will be irrevocably

lost if the preliminary injunction is not now reviewed, and his

appeal is dismissed.

    Dismissed.

    Judges ELMORE and McCULLOUGH concur.
