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Northwestern Financial Group Inc. v. County of Gaston6/15/1993
LEWIS, Judge.
The facts of this case present two issues on appeal. The first of these is whether or not the denial of a motion for summary judgment asserting the defense of res judicata is immediately appealable. If so, then we must address the merits of defendants' res judicata defense to determine whether or not Northwestern's
claims for damages are barred. On the facts of this case, we hold that the denial of defendants' motion affects a substantial right and we have addressed the merits of defendants' res judicata defense.
In addition to the defense of res judicata, the individual defendants have also raised the defenses of absolute immunity and qualified immunity, and claim that it was error for the trial court to have denied their summary judgment motion on these theories. Recent case law has left no doubt that the denial of a motion for summary judgment on the basis of immunity is immediately appealable. See EEE-ZZZ Lay Drain Co. v. North Carolina Dep't of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (1992); Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991). However, we need not address this part of defendants' appeal because the issues of qualified immunity and absolute immunity are not properly before this Court. In their brief, defendants expressly abandoned their qualified immunity defense, choosing to rely exclusively on absolute immunity. However, at no point in the proceedings below did defendants raise the defense of absolute immunity in the pleadings or otherwise. Since the issue of absolute immunity was not raised below, it is not properly before us now. N.C.R. App. P. 10(b)(1).
The facts of this case and the relationship between the two suits brought by Northwestern are essential to an understanding of this matter. In 1987, Northwestern began developing a tract of land in Gaston County for use as a mobile home park and submitted plans to the Gaston County Planning Board for approval. At the time the initial plans were submitted, Gaston County had in effect a 1986 Mobile Home Park Ordinance. In September of 1987, Gaston County revised its Mobile Home Park Ordinance and adopted a 1987 version. Three days prior to the revision of the Mobile Home Park Ordinance, Northwestern amended its plans to increase the number of available spaces for mobile homes since a package treatment plant would be used instead of septic tanks. When Northwestern submitted its revised plans, the Planning Board rejected them as being a hazard to the public welfare and also said that future plans would need to comply with the 1987 ordinance.
Claiming that its plans had been improperly disapproved by the Gaston County Planning Board, Northwestern filed an action on 26 August 1988 entitled "Complaint, Request for Preliminary and Permanent Injunction, Request for Writ of Mandamus and Request for Writ of Certiorari" (hereafter the "1988 action") against
the County of Gaston, the members of the Gaston County Board of Commissioners, as well as the members of the Gaston County Planning Board. On 19 December 1988 the trial court issued a permanent injunction in favor of Northwestern requiring defendants to issue a permit to Northwestern under the 1986 ordinance. At no point in the 1988 action did Northwestern seek anything other than equitable relief. The 1988 action eventually reached the Supreme Court which upheld the trial court and required the Gaston County Planning Board to issue a permit in favor of Northwestern.
While the 1988 action was pending before the Supreme Court, Northwestern filed a motion to amend i
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