{
  "id": 11654261,
  "name": "TOWN OF PINE KNOLL SHORES, ROBERT F. GALLO, DAVID E. HASULAK, MARY I. KANYHA C. REESE MUSGRAVE, EVAN C. RODERICK, and RICHARD H. SCHULTZ, Appellees v. CAROLINA WATER SERVICE, INC. OF NORTH CAROLINA, Appellant",
  "name_abbreviation": "Town of Pine Knoll Shores v. Carolina Water Service, Inc. of North Carolina",
  "decision_date": "1998-01-06",
  "docket_number": "No. COA97-138",
  "first_page": "321",
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  "last_updated": "2023-07-14T19:05:25.972365+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges WALKER and SMITH concur."
    ],
    "parties": [
      "TOWN OF PINE KNOLL SHORES, ROBERT F. GALLO, DAVID E. HASULAK, MARY I. KANYHA C. REESE MUSGRAVE, EVAN C. RODERICK, and RICHARD H. SCHULTZ, Appellees v. CAROLINA WATER SERVICE, INC. OF NORTH CAROLINA, Appellant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nAn actual controversy between the parties must exist at the time the complaint is filed in order for the court to have jurisdiction to render a declaratory judgment. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 584-85, 347 S.E.2d 25, 29 (1986). Because there is no actual controversy involved in this case, we vacate the judgment of the trial court.\nOn 20 September 1995, the Town of Pine Knoll Shores and six individuals who owned property within the town brought an action for declaratory judgment against Carolina Water Service, Inc. of North Carolina (\u201cCarolina Water\u201d). The plaintiffs sought a declaration that a 1966 agreement that entitled Carolina Water to the exclusive right to provide water to their land was no longer enforceable. After a trial on stipulated facts, the trial court entered a judgment declaring that the 1966 agreement \u201cis no longer enforceable by Defendant [Carolina Water] or its successors in interest and is not binding upon Plaintiffs.\u201d Carolina Water appeals from this judgment, arguing that the trial court erred by finding the agreement unenforceable. We do not, however, consider the parties\u2019 arguments because we hold that the trial court did not have jurisdiction to render a declaratory judgment.\nPine Knoll Shores brought this action under North Carolina\u2019s version of the Uniform Declaratory Judgment Act, N.C. Gen. Stat. \u00a7\u00a7 1-253 to 1-267 (1996). N.C. Gen. Stat. \u00a7 1-253 provides that North Carolina courts \u201cshall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed.\u201d N.C. Gen. Stat. \u00a7 1-254 provides:\nAny person interested under a deed, will, written contract or other writings constituting a contract, . . . may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.\n\u201cAlthough the North Carolina Declaratory Judgment Act does not state specifically that an actual controversy between the parties is a jurisdictional prerequisite to an action thereunder, our case law does impose such a requirement.\u201d Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 583, 347 S.E.2d 25, 29 (1986).\nIn Wendell v. Long, 107 N.C. App. 80, 81, 418 S.E.2d 825, 825 (1992), the plaintiffs were property owners in a residential subdivision. They brought an action under the Declaratory Judgment Act asking for a declaration that restrictive covenants in the deeds of their neighbors were valid and would prohibit the defendants\u2019 proposed construction project. Id. at 81-82, 418 S.E.2d at 825. We held that there was no actual controversy between the parties that would satisfy the jurisdictional requirement, because the plaintiffs\u2019 complaint did not \u201callege that defendants have acted in violation of these covenants, but [rather] that they anticipate some future action to be taken by defendants which would result in a violation.\u201d Id. at 83, 418 S.E.2d at 826. The case was vacated and remanded for an order dismissing the action because of the lack of jurisdiction. Id.\nIn the present case, Pine Knoll Shores alleged in its complaint that \u201c[t]he Town is the owner of certain real property located within the corporate boundaries of Pine Knoll Shores upon which it proposes to construct a water system for purposes of providing potable water to the residents of the Town of Pine Knoll Shores.\u201d (emphasis added). Thus, as of the filing of the complaint in this case, the alleged controversy between the parties was based solely on proposed action. Since our courts do not render advisory opinions, and in light of Wendell, we must vacate the judgment of the trial court and remand this matter for entry of an order dismissing the action.\nVacated and remanded.\nJudges WALKER and SMITH concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Hunton & Williams, by Edward S. Finley, Jr., and Smith, Helms, Mulliss & Moore, by James G. Exum, Jr., for defendant-appellant.",
      "Kirkman & Whitford, by Kenneth M. Kirkman, for plaintiffs-appellees.",
      "Carolinas Chapter of the National Association of Water Companies (Amicus Curiae), by William E. Grantmyre."
    ],
    "corrections": "",
    "head_matter": "TOWN OF PINE KNOLL SHORES, ROBERT F. GALLO, DAVID E. HASULAK, MARY I. KANYHA C. REESE MUSGRAVE, EVAN C. RODERICK, and RICHARD H. SCHULTZ, Appellees v. CAROLINA WATER SERVICE, INC. OF NORTH CAROLINA, Appellant\nNo. COA97-138\n(Filed 6 January 1998)\nDeclaratory Judgment Actions \u00a7 7 (NCI4th)\u2014 town water system \u2014 proposed construction \u2014 actual controversy required\nThe trial court lacked jurisdiction under the Declaratory Judgment Act to enter a judgment in an action to determine whether an agreement giving defendant the exclusive right to provide water to certain land was enforceable because the alleged controversy between the parties was based solely on the Town\u2019s proposed construction of a water system. An actual controversy between the parties is a jurisdictional requirement.\nAppeal by defendant Carolina Water Service, Inc. of North Carolina, from judgment entered 31 October 1996 by Judge James E. Ragan, III, in Carteret County Superior Court. Heard in the Court of Appeals 7 October 1997.\nHunton & Williams, by Edward S. Finley, Jr., and Smith, Helms, Mulliss & Moore, by James G. Exum, Jr., for defendant-appellant.\nKirkman & Whitford, by Kenneth M. Kirkman, for plaintiffs-appellees.\nCarolinas Chapter of the National Association of Water Companies (Amicus Curiae), by William E. Grantmyre."
  },
  "file_name": "0321-01",
  "first_page_order": 357,
  "last_page_order": 359
}