IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-1241

Filed: 17 July 2018

Watauga County, No. 16-CVS-623

LMSP, LLC, Plaintiff,

v.

TOWN OF BOONE, a North Carolina Municipal Corporation, Defendant.

Appeal by plaintiff from orders entered 23 February 2017 by Judge Bradley B. 

Letts and 5 June 2017 by Judge Richard L. Doughton in Watauga County Superior

Court. Heard in the Court of Appeals 18 April 2018.

Miller & Johnson, PLLC, by Nathan A. Miller, for plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, by Patrick H. Flanagan and Meredith 

FitzGibbon, for defendant-appellee.

ZACHARY, Judge.

Plaintiff appeals from orders denying its motion for preliminary injunction and 

granting defendant Town of Boone’s motion to dismiss. We affirm.

Background

In March 2016, plaintiff LMSP, LLC filed suit against the Town of Boone in 

state court seeking declaratory and injunctive relief on the grounds that the Town’s

towing ordinance, Chapter 73, violated plaintiff’s right to substantive due process, 

plaintiff’s right to equal protection, and plaintiff’s rights under the First Amendment 

to the United States Constitution, as well as plaintiff’s rights under Article I, Section 
LMSP, LLC V. TOWN OF BOONE

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1 of the North Carolina Constitution and the provisions of N.C. Gen. Stat. § 160A174. The Town had that action removed to the United States District Court for the 

Western District of North Carolina based on the existence of federal question 

jurisdiction. 

On 17 November 2016, while the federal action was still pending, the Town’s 

council met and passed several amendments to the towing ordinance at its regularly 

scheduled meeting. Plaintiff thereafter filed another suit against the Town in state 

court (“the present action”). The present action alleges causes of action for violations 

of the provisions of N.C. Gen. Stat. § 160A-174 and of the right to earn a livelihood, 

the right to due process, and the right to equal protection under the North Carolina 

Constitution. Like the pending federal action, the present action also seeks 

declaratory and injunctive relief. 

The Town’s council met again on 15 December 2016 and passed additional 

amendments to the towing ordinance. However, plaintiff claims that those 

amendments were passed “in violation of the North Carolina laws governing open 

meetings pursuant to N.C.G.S. § 143-318.10(a).” Plaintiff accordingly filed an 

amended complaint in the present action on 22 December 2016 setting forth a new 

cause of action based on the open meeting laws. The federal action was still pending 

at the time. 
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On 9 January 2017, plaintiff’s motion for preliminary injunction came on for 

hearing before the Honorable Bradley B. Letts. Judge Letts denied plaintiff’s motion 

for preliminary injunction by order entered 23 February 2017 on the grounds that 

“Plaintiff cannot show a likelihood of success on the merits[,]” and that “Plaintiff has 

also failed to allege facts that show it will be irreparably harmed if the preliminary 

injunction is not granted.” Judge Letts’s conclusion that plaintiff could not establish 

a likelihood of success on the merits was based upon his determination that, in light 

of the pending federal action, the present action was “likely barred by the doctrine of 

prior action pending.”

The Town filed a Rule 12(b)(6) motion to dismiss plaintiff’s present action on 6 

January 2017. The Town’s motion to dismiss was heard on 22 May 2017 before the 

Honorable Richard L. Doughton, and the parties argued whether the prior action 

pending doctrine barred this action. Judge Doughton granted the Town’s motion, and 

dismissed the present action by order entered 5 June 2017. Plaintiff timely appealed. 

On appeal, plaintiff argues that the trial court erred (1) by denying plaintiff’s 

motion for preliminary injunction, and (2) by granting the Town’s motion to dismiss. 

The thrust of plaintiff’s contentions on appeal is that the present action is, in fact, not 

barred by the prior action pending doctrine. We disagree. 
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Motion to Dismiss

Standard of Review

It is axiomatic that “[o]n appeal of a 12(b)(6) motion to dismiss, this Court 

conducts a de novo review of the pleadings to determine their legal sufficiency and to 

determine whether the trial court’s ruling on the motion to dismiss was correct.” 

Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and 

quotation marks omitted). This Court must ascertain “whether, as a matter of law, 

the allegations of the complaint, treated as true, are sufficient to state a claim upon 

which relief may be granted under some legal theory.” Block v. County of Person, 141 

N.C. App. 273, 277, 540 S.E.2d 415, 419 (2000) (citation and quotation marks 

omitted). 

Prior Action Pending Doctrine

Invocation of the prior action pending doctrine is a form of “plea in abatement,” 

State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 375, 496 S.E.2d 585, 587 

(1998), that is, one “that objects to the place, time, or method of asserting the 

plaintiff’s claim but does not dispute the claim’s merits.” Plea in Abatement,

BLACK’S LAW DICTIONARY, 1189 (10th ed. 2014). Specifically, the prior action 

pending doctrine applies whenever “a prior action is pending between the same 

parties, affecting the same subject matter in a court within the state or the federal 

court having like jurisdiction[.]” Onslow County, 128 N.C. App. at 375, 496 S.E.2d at 
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587. In determining whether abatement of the subsequent action under the prior 

action pending doctrine is required, “the ordinary test is this: ‘Do the two actions 

present a substantial identity as to parties, subject matter, issues involved and relief 

demanded?’ ” Id. at 375, 496 S.E.2d at 588 (quoting Clark v. Craven Reg’l Med. Auth., 

326 N.C. 15, 21, 387 S.E.2d 168, 172 (1990)). When such a substantial identity is 

presented, it is evident that “the subsequent action is wholly unnecessary and 

therefore, in the interest of judicial economy, should be subject to a plea in 

abatement.” Id. at 375, 496 S.E.2d at 587 (citations omitted); Houghton v. Harris, 

243 N.C. 92, 95, 89 S.E.2d 860, 863 (1955). “An action is pending for the purpose of 

abating a subsequent action between the same parties for the same cause from the 

time of the issuance of the summons until its final determination by judgment.” 

McDowell v. Blythe Bros. Co., 236 N.C. 396, 398-99, 72 S.E.2d 860, 862 (1952) 

(citations omitted); see also Gilliam v. Sanders, 198 N.C. 635, 637, 152 S.E. 888, 889-

90 (1930).

When applicable, the prior action pending doctrine will operate as grounds for 

dismissal under Rule 12(b) of the North Carolina Rules of Civil Procedure. Brooks v. 

Brooks, 107 N.C. App. 44, 47, 418 S.E.2d 534, 536 (1992) (“A plea in abatement based 

on a prior pending action, although not specifically enumerated in Rule 12(b) of the 

Rules of Civil Procedure, is a preliminary motion of the type enumerated in Rule 

12(b)[.]”); see also Morrison v. Lewis, 197 N.C. 79, 81, 147 S.E. 729, 731 (1929) 
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(“Where an action is instituted, and it appears to the court . . . that there is another 

action pending between the same parties and substantially on the same subjectmatter, and that all the material questions and rights can be determined therein, 

such action will be dismissed.”).

In the instant case, there is no question but that the prior filed federal action 

and the present action involve the same parties, implicate the towing ordinances of 

the Town of Boone, and request similar relief. However, plaintiff argues that the 

federal action and the present action do not present a substantial identity as to the 

issues involved, and the trial court erred in granting the Town’s motion to dismiss.

Plaintiff attempts to demonstrate a lack of substantial identity between the 

two causes of action by parsing the particulars of the original and amended versions 

of the towing ordinance. For instance, in the present action, “Plaintiff takes particular 

issue with Section 73.03(A)(3)” of the amended towing ordinance, which requires that 

there 

be a minimum of one warning sign for each vehicular 

entrance to the parking lot and such other signs as are 

required so that an ordinary driver who is not familiar with 

that parking lot is warned by the signage upon entering the 

parking lot, exiting his or her vehicle, and/or upon exiting 

the parking lot as a pedestrian that the lot is private and 

that unauthorized vehicles are subject to towing or 

booting[,]

whereas Section 73.09 of the prior ordinance at issue in the federal action required 

“[t]wo signs per each vehicle entrance to the parking lot . . . which are conspicuous to 
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and can easily be seen by every unauthorized person entering the parking lot or 

exiting a parked vehicle in the parking lot[.]” (emphasis added). 

The existence of minute, immaterial variations between the two ordinances 

does not change the fact that the crux of both the federal and present action is 

plaintiff’s contention that the towing ordinance exceeds the scope of the Town’s 

authority. In essence, as Judge Doughton expressed, plaintiff had a “beef against the 

Town of Boone” because of its towing ordinance. Plaintiff filed suit against the Town 

in response. In the meantime, the Town amended its towing ordinance. Plaintiff then

sued the Town once again, while the federal action remained pending. Both 

complaints provide practically identical descriptions of the suits: plaintiff’s complaint 

in the federal action stated that “this action involves the constitutionality of various 

portions of Defendant Boone’s immobilization ordinance known as Chapter 73 and 

whether or not Defendant Boone exceeded the scope of their authority granted to 

them in N.C.G.S. § 160A-174[,]” while its complaint in the present action asserts that 

“this action involves the constitutionality of Defendant’s towing and booting 

ordinance known as Section 73 and whether or not Defendant exceeded the scope of 

their authority granted to them in N.C.G.S. § 160A-174.” These issues are 

substantially identical, thereby rendering the subsequent present action “wholly 

unnecessary.” Shoaf v. Shoaf, 219 N.C. App. 471, 475, 727 S.E.2d 301, 305 (2012) 

(citations and quotation marks omitted). Moreover, the fact that plaintiff filed an 
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amended complaint in the present action asserting the open meetings laws as an 

additional ground for relief does not change the fact that the federal court could

“dispose of the entire controversy in the prior action[,]” thus rendering “the 

subsequent action . . . wholly unnecessary.” Clark, 326 N.C. at 20, 387 S.E.2d at 171.

It is clear that plaintiff did not “want to go to federal court[,]” and that it “would 

rather have [its] case” heard in state court. However, after plaintiff remained 

dissatisfied with the Town’s amended towing ordinance, a proper procedure would 

have been either for plaintiff to amend its complaint in the federal action in light of 

the amended ordinance; voluntarily dismiss the federal action; or wait for the federal 

court to dismiss the action as moot. Instead of opting for one of these routes, plaintiff 

filed the present action in State court, this time alleging only state causes of action 

in order to avoid federal question jurisdiction. This maneuver, however, did not 

negate the fact that the issues raised in the subsequent action were so substantially 

similar as to have been proper for determination by the federal court as a single 

litigation in the prior action. See City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 

156, 165, 139 L. Ed. 2d 525, 535 (1997) (“[I]n any civil action of which the district 

courts have original jurisdiction, the district courts shall have supplemental 

jurisdiction over all other claims that are so related to claims in the action within 

such original jurisdiction that they form part of the same case or controversy under 

Article III[.]”). 
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Accordingly, we affirm the trial court’s order granting the Town’s motion to 

dismiss the present action on the grounds that it is barred by the prior action pending 

doctrine. 

Preliminary Injunction

For the reasons discussed above, we also affirm the trial court’s denial of 

plaintiff’s motion for a preliminary injunction.

A preliminary injunction is “an extraordinary measure” that “will be issued 

only (1) if a plaintiff is able to show likelihood of success on the merits of his case and 

(2) if a plaintiff is likely to sustain irreparable loss unless the injunction is issued[.]” 

Ridge Community Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 

(1977) (citations omitted). “The standard of review from a preliminary injunction is 

‘essentially de novo.’ ” VisionAIR, Inc. v. James, 167 N.C. App. 504, 507, 606 S.E.2d 

359, 362 (2004) (quoting Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 540, 320 

S.E.2d 693, 696 (1984)). “Nevertheless, ‘a trial court’s ruling on a motion for a 

preliminary injunction is presumed to be correct, and the party challenging the ruling 

bears the burden of showing it was erroneous.’ ” Id. (quoting Analog Devices, Inc. v. 

Michalski, 157 N.C. App. 462, 465, 579 S.E.2d 449, 452 (2003)) (citation omitted). 

In the instant case, Judge Letts’s order denying plaintiff’s motion for a 

preliminary injunction stated that “[t]he claims in the Plaintiff’s Amended Complaint 

are likely barred by the doctrine of prior action pending. As such, there is a likelihood 
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that the Plaintiff’s Amended Complaint fails to state a claim upon which relief can be 

granted.” “Because there is a high likelihood that Plaintiff’s Amended Complaint fails 

to state a claim upon which relief can be granted,” Judge Letts concluded that 

“Plaintiff cannot show a likelihood of success on the merits. . . . Therefore, Plaintiff is 

not entitled to preliminary injunction.” Indeed, Judge Letts was correct: Judge 

Doughton dismissed plaintiff’s action, and the dismissal was appropriate. 

Accordingly, we affirm the trial court’s order denying plaintiff’s motion for a 

preliminary injunction. 

Conclusion

For the reasoning explained herein, the orders denying plaintiff’s motion for a 

preliminary injunction and granting the Town’s motion to dismiss are

AFFIRMED.

Judges ELMORE and TYSON concur.