Lynch v. Oak Island Beach Villa Owners Ass'n, Inc

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-177 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STUART TODD LYNCH and wife, SALLY S. LYNCH, Plaintiffs, v. Brunswick County No. 12 CVS 1532 OAK ISLAND BEACH VILLA OWNERS ASSOCIATION, INC., a North Carolina non-profit corporation, Defendant. Appeal by defendant from order entered 25 October 2012 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 4 June 2013. Johnson & Moore, P.A., plaintiffs-appellees. by Kimberly L. Moore, for Cranfill Sumner & Hartzog LLP, by Melody J. Jolly, for defendant-appellant. STEELMAN, Judge. Where appellant substantial right, fails to its appeal articulate from dismiss is dismissed as interlocutory. the violation of the denial of motions a to -2- I. Factual and Procedural History Stuart and Sally Lynch (plaintiffs) own a condominium unit in the Oak Island Beach Villas development in Brunswick County. Oak Island Beach Villa Owners Association (defendant) is a nonprofit corporation whose purpose is to manage and maintain the development. Plaintiffs unit, unlike all but three of the other 150 units in the development, has an enclosed front porch, which was constructed permission of defendant. by a prior owner with the express Plaintiffs purchased the unit in 2005. In late 2011, defendant prepared to make improvements to the exterior unit. of the condominium units, including plaintiffs Defendant informed plaintiffs that the porch was a common area under defendant s control and that it would have to be removed in order for the improvements to be made to plaintiffs unit. Defendant further advised plaintiffs that once the improvements were completed, plaintiffs could construct a new front porch, at their expense. On 2 February 2012, plaintiffs advised defendant that they owned the front porch, and that any entry upon the porch by defendant would be considered a -3trespass. Defendant proceeded to have plaintiffs front porch removed. On 18 July 2012, plaintiffs filed a verified complaint stating the following claims: (1) to quiet title to the front porch; (2) an alternative claim for adverse possession; and (3) a claim for damages arising out of trespass and damage to real property. On 17 September 2012, defendant filed an answer, including a motion to dismiss pursuant to Rules 12(b)(6) and 12(b)(7) of the North Carolina Rules of Civil Procedure. On 25 October 2012, the trial court denied both of defendant s motions to dismiss. Defendant appeals. II. Interlocutory Appeal Defendant contends that the trial court s order affects a substantial right, and that therefore its appeal of the trial court s order is appropriately before us. We disagree. A. Standard of Review Generally, interlocutory there orders is and no right judgments. of immediate Goldston v. appeal Am. from Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). [W]hen include in an its appeal is statement interlocutory, of grounds the for appellant appellate must review -4 sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right. Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C.R. App. P. 28(b)(4)), aff d per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). It is not the duty of this Court to construct arguments for or find support for appellant s right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court 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 v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). B. 12(b)(6) Motion Defendant s motion to dismiss alleged a failure to state a claim, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Defendant cites our Supreme Court s decision in N.C. Dep't Of Transp. v. Stagecoach Vill., 360 N.C. 46, 619 S.E.2d 495 (2005). In Stagecoach, the Supreme Court held that interlocutory orders concerning title or area taken must be immediately appealed as vital preliminary substantial rights adversely affected. issues involving Id. at 48, 619 S.E.2d -5at 496. misplaced. However, defendant s reliance on Stagecoach is In FMB v. Creech, we held that Stagecoach Village and the cases upon which it bases its analysis deal solely with issues of condemnation and the involuntary taking of a private citizen's property by the State of North Carolina. FMB, Inc. v. Creech, 198 N.C. App. 177, 180, 679 S.E.2d 410, 412 (2009). Stagecoach is strictly limited to condemnation proceedings, and is thus not applicable to the instant case. Defendant s assertion of a substantial entirely upon its misreading of Stagecoach. from the denial of its Rule 12(b)(6) right is based Defendant s appeal motion to dismiss is dismissed. C. 12(b)(7) Motion Defendant also appeals on the basis of the denial of its motion to dismiss for failure to join necessary parties, pursuant to Rule 12(b)(7) of the North Carolina Rules of Civil Procedure. We note that the denial of a motion to dismiss for failure to join a necessary party does not affect a substantial right and is therefore not appealable. Builders Mut. Ins. Co. v. Meeting St. Builders, LLC, ___ N.C. App. ___, ___, 736 S.E.2d 197, 199 (2012) (citing Fraser v. Di Santi, 75 N.C. App. 654, -6331 S.E.2d 217 (1985); Godley Auction Co., Inc. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (1979)).1 Defendant s appeal from the denial of its Rule 12(b)(7) motion to dismiss is dismissed. DISMISSED. Judges McGEE and ERVIN concur. Report per Rule 30(e). 1 The opinion also cited two unpublished opinions for the same rationale. See Hill v. Taylor, 149 N.C. App. 488, 562 S.E.2d 469 (2002) (unpublished); Wilson v. Taylor, 149 N.C. App. 491, 562 S.E.2d 469 (2002) (unpublished).

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