IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-280

No. COA21-117

Filed 3 May 2022

Watauga County, No. 15CVS628

APPALACHIAN MATERIALS, LLC, Petitioner,

v.

WATAUGA COUNTY, a North Carolina County, Respondent,

and

TERRY COVELL, SHARON COVELL, and BLUE RIDGE ENVIRONMENTAL 

DEFENSE LEAGUE, INC., d/b/a HIGH COUNTRY WATCH, Intervenors.

Appeal by Respondent from order entered 31 August 2020 by Judge Gary M. 

Gavenus in Watauga County Superior Court. Heard in the Court of Appeals 16 

November 2021.

Moffatt & Moffatt, PLLC, by Tyler R. Moffatt, for Petitioner-Appellee.

Di Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea Bell Garrett, for 

Respondent-Appellant.

DILLON, Judge.

¶ 1 This matter concerns the denial by the Respondent Watauga County (the 

“County”) of an application submitted by Petitioner Appalachian Materials, LLC, for 

a permit to build an asphalt plant. This appeal is the second in this matter. The 
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2022-NCCOA-280

Opinion of the Court

opinion in the first appeal can be found at Appalachian Materials, LLC v. Watauga 

County, 262 N.C. App. 156, 822 S.E.2d 57 (2018) (hereinafter “Appalachian I”).

¶ 2 In the first appeal, we held that the trial court erred by affirming the County’s 

denial of the permit based on one of the grounds relied upon by the County in its 

decision. The issue in this second appeal concerns whether Judge Gavenus on 

remand erred by ordering the issuance of the permit without considering the County’s

other grounds for denying the permit, grounds which were not previously considered 

by the trial court or by our Court in the first appeal.

I. Background

¶ 3 In 2015, Petitioner applied for a permit to construct an asphalt plant. That 

same year, the County denied the permit on several grounds. In 2017, the Superior 

Court affirmed the County’s decision on the ground that the proposed plant would be 

too close to an educational facility, without considering the merit of the other grounds.

¶ 4 In the first appeal, Petitioner contended that the nearby building was not an 

“educational facility” within the meaning of the applicable ordinance. The County 

contended that the Superior Court ruled correctly but, otherwise, did not exercise its 

right under Rule 10(c) of our Rules of Appellate Procedure to ask our Court to consider 

the other grounds upon which the County initially denied the permit.

¶ 5 In any event, we agreed with Petitioner that the nearby building was not an 

educational facility and, therefore, that its permit application should not have been 
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2022-NCCOA-280

Opinion of the Court

denied on that basis. In our mandate, we “reversed” the Superior Court order and 

remanded the matter “for proceedings not inconsistent with this opinion.” Our 

Supreme Court subsequently denied discretionary review. Appalachian Materials, 

LLC v. Watauga Cty., 372 N.C. 108, 824 S.E.2d 419 (2019) (mem.).

¶ 6 On remand, Judge Gavenus refused to consider the County’s other grounds for 

denying the permit, concluding that he was compelled to order the issuance of the 

permit based on our mandate in Appalachian I. The County timely appealed.

II. Analysis

¶ 7 The County argues that Judge Gavenus erred by ordering the issuance of the 

permit without first considering the alternate grounds it relied upon in denying

Petitioner’s application which were never considered in the first appeal.

¶ 8 It is true that our Supreme Court has explained that an appellee does not 

waive future consideration of alternative legal grounds by failing to ask our Court to 

consider them under Rule 10(c), disavowing a contrary holding of our Court:

[W]e disavow that holding in order to avoid confusion in 

subsequent cases. Simply put, nothing in the relevant 

provisions of the North Carolina Rules of Appellate 

Procedure or any of our prior cases requires an appellee to 

challenge legal decisions that the trial court declined to 

make on the grounds that the case could be fully resolved 

on some other basis on appeal pursuant to Rule 10(c) of the 

North Carolina Rules of Appellate Procedure at the risk of 

losing the right to assert those claims at a later time.

City of Asheville v. State, 369 N.C. 80, 87 n. 11, 794 S.E.2d 759, 766 n. 11 (2016).
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¶ 9 But our Supreme Court has also held that a trial court is compelled to follow 

the mandate of our Court. See In re S.M.M., 374 N.C. 911, 914, 845 S.E.2d 8, 11 

(2020) (“It is well established that the mandate of an appellate court is binding upon 

the trial court and must be strictly followed without variation or departure. No 

judgment other than that directed or permitted by the appellate court may be 

entered.” (internal quotation marks and brackets omitted)).

¶ 10 And we construe our mandate in Appalachian I to direct the Superior Court to 

order the issuance of the permit. For instance, just prior to the Conclusion section, 

we expressly held that the Superior Court erred in affirming the County’s denial:

Accordingly, we hold that the trial court erred in affirming 

the Board’s decision to uphold the denial of Appalachian’s 

permit application.

Appalachian I, 262 N.C. App. at 164, 822 S.E.2d at 63. We could have held that the 

Superior Court merely erred by agreeing with the County that the nearby facility was 

an educational facility, thus allowing the court on remand to consider the County’s 

other grounds for denying the application. But we did not. Also, we ended our opinion 

with the word “REVERSE” rather than “VACATE”. See, e.g., Carolina Mulching Co. 

v. Raleigh-Wilmington Inv’rs II, LLC, 272 N.C. App. 240, 250, 846 S.E.2d 540, 547 

(2020) (Dillon, J., dissenting) (discussing the difference between “vacate” and 

“reverse”), aff’d, 378 N.C. 100, 2021-NCSC-79. In sum, our mandate that the court

on remand act “consistent with [our] opinion,” an opinion which held that the court 
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2022-NCCOA-280

Opinion of the Court

had previously erred in affirming the denial of the permit, and that we were reversing 

(rather than vacating) the trial court’s order, expresses our intent that on remand the 

Superior Court was to direct the County to issue the permit.

¶ 11 It may be that our mandate in Appalachian I was too sweeping based on the 

language quoted above from our Supreme Court’s City of Asheville opinion. But our 

prior mandate is the law of the case. The County could have asked us to reconsider 

our mandate in the first appeal. The County could have presented this issue in its 

petition to our Supreme Court for discretionary review. But the County did neither.1

¶ 12 We, therefore, conclude that the Superior Court had no choice but to order the 

issuance of the permit based on our mandate in Appalachian I.

AFFIRMED.

Judges MURPHY and GORE concur.

 

1 The County’s petition to our Supreme Court for discretionary review of Appalachian 

I only presents the issue whether we were correct on the definition of “educational facility.”