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 
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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 
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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;
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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.
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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’ 
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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 
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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.