City of Wilson v. Batten Family, L.L.C.

• Decision Date: 16 April 2013
• Docket Number: No. COA12–1103.,COA12–1103.
• Citation: 740 S.E.2d 487
• Court: North Carolina Court of Appeals
• Parties: CITY OF WILSON, Plaintiff–Appellee, v. THE BATTEN FAMILY, L.L.C.; Branch Banking & Trust; and BB & T Collateral Services Corporation, Trustee, Defendants–Appellants.

740 S.E.2d 487

CITY OF WILSON, Plaintiff–Appellee,

v.THE BATTEN FAMILY, L.L.C.; Branch Banking & Trust; and BB & T Collateral Services Corporation, Trustee, Defendants–Appellants.

No. COA12–1103.

Court of Appeals of North Carolina.

April 16, 2013.

Appeal by Defendants from order entered 4 January 2012 by Judge James C. Cole in Superior Court, Wilson County. Heard in the Court of Appeals 11 February 2013.

Cauley Pridgen, P.A., by James P. Cauley, III, Wilson, and Christopher L. Beacham, Beaufort, for Plaintiff–Appellee.

Narron & Holdford, P.A., Wilson, by I. Joe Ivey; Farris & Farris, P.A., Wilson, by Brian Paxton, for Defendants–Appellants.

McGEE, Judge.

The City of Wilson (Plaintiff), pursuant to Article 9 of Chapter 136 of the North Carolina General Statutes, filed a complaint on 30 June 2008, to acquire by condemnation a portion of real property owned by The Batten Family, L.L.C. (Defendant) in order to obtain a utility easement.¹ Plaintiff sought a permanent easement of right-of-way to “construct, install, operate, utilize, inspect, rebuild, repair, replace, remove, and maintain overhead and/or underground facilities consisting of electric, gas or other fuel products, communication, or other utilities within [the] easement area[.]” Plaintiff's easement was located on the portion of Defendant's property that bordered Bloomery Road. Defendant filed an answer on 25 June 2009. Plaintiff amended its complaint and declaration of taking multiple times, including filing a Second Amended Complaint on 9 July 2010, adding Branch Banking and Trust and BB & T Collateral Service Corporation, Inc. as Defendants.² Plaintiff filed a “Motion for Determination of All Issues Other Than Damages,” pursuant to N.C. Gen.Stat. § 136–108, on 26 February 2010. Defendant also filed a motion, requesting a determination of all issues other than compensation, on 21 March 2010.

The trial court conducted a hearing on 8 July 2010, “on the parties' motions pursuant to N.C. Gen.Stat. § 136–108 for an Order to determine and resolve any and all issues raised by the pleadings and amended pleadings in this action other than the issue of damages[.]” Plaintiff's original complaint listed only two parcels of real property owned by Defendant that would be affected by the taking. The sole issue argued at the hearing was whether nine parcels of real property, rather than two, should comprise one contiguous and commonly owned parent tract for purposes of the taking. Plaintiff and Defendant agreed that the only issue before the trial court was “whether there[ ] [was] unity of use of all these properties.” During the hearing, Plaintiff elicited testimony from Dr. Frank Batten regarding access to Bloomery and Packhouse Roads. Dr. Batten affirmed that he still had access to both roads at that time. Defendant did not request that the trial court rule on the matter of access to either Bloomery or Packhouse Roads during the hearing.

Following the 8 July 2010 hearing, the trial court issued an order (the first order) ruling that the real property affected by the taking consisted of all nine parcels owned by Defendant; that the “nature of the title acquired by Plaintiff from Defendants is an easement interest[;]” and that the “only issue remaining [was] that of just compensation.” In support of its ruling, the trial court made a number of findings of fact, including two relevant to this appeal:

9. The original [c]omplaint included as the “entire tract” only ... the [two] tax parcels which have direct access to BloomeryRoad and which the taking area crosses.

....

13. When [Defendant] acquired [five particular parcels], they were landlocked. They now have access through the remaining properties to both Bloomery Road and Packhouse Road.

Neither party appealed the first order.

Defendant filed another motion for hearing pursuant to N.C.G.S. § 136–108, on 17 November 2011, requesting that the trial court “determine all issues other than the issue of damages, to wit; whether Defendant['s] access to Bloomery Road has been materially and irrevocably altered by the Plaintiff['s] taking of a utility easement.” Plaintiff filed a response to Defendant's motion on 29 November 2011, arguing that “one Superior Court judge may not correct another's errors of law,” and that Defendant was not entitled to compensation for loss of access.

The trial court held a hearing on Defendant's motion on 29 and 30 November 2010. The trial court heard arguments from both parties' counsel, as well as testimony from Dr. Batten, regarding Defendant's loss of access to Bloomery Road. Dr. Batten testified that, “[f]rom the date of the taking” on 30 June 2008, the issue of access to Batten Road has “always been a concern.” Plaintiff's counsel argued that the trial court had “already made a ruling” on the issue of access in the first order, and that one superior court judge could not overrule another. The trial court stated at the hearing that it was going to deny Defendant's motion for a N.C.G.S. § 136–108 hearing. Defendant asked the trial court the following: “So is it the [c]ourt's ruling that [the first] order which was a 108 hearing that that has decided the issue of loss of access?” The trial court responded: “That's correct.” Defendant's counsel objected and stated Defendant's intention to appeal.

Plaintiff made a “motion in limine to exclude any evidence or testimony regarding the loss of access” from the trial on just compensation. However, because Defendant was appealing the denial of its motion for a second N.C.G.S. § 136–108 hearing, the parties and the trial court agreed that ruling on Plaintiff's motion would be inappropriate until after the appeal was decided.

The trial court entered an order on 10 January 2012 (the second order) denying Defendant's motion for a second N.C.G.S. § 136–108 hearing to determine all issues other than compensation. The trial court ruled that the first order “determined that ... Defendant's property now has access to Bloomery Road and Packhouse Road,” and that the only remaining issue was determination of just compensation. Defendant appeals.

I.

Defendant argues three issues on appeal: (1) that the first order did not determine the issue of access to Bloomery Road, (2) that even if the first order did determine the issue of access to Bloomery Road, the trial court failed to make sufficient findings of fact to support any conclusion and decretal order that Defendant had access and, (3) because the first order did not decide the issue of access, the second order was “devoid of sufficient findings of fact and conclusions of law to deny Defendant's motion for a hearing pursuant to G.S. § 136–108.” We hold that the trial court correctly denied Defendant's motion for a second hearing pursuant to N.C.G.S. § 136–108, but for reasons different than those found by the trial court.

II.

When a municipality deems a condemnation necessary, it must “institute a civil action by filing in the superior court of any county in which the land is located a complaint and a declaration of taking.” N.C. Gen.Stat. § 136–103 (2011). The landowner may then file an answer “praying for a determination of just compensation.” N.C. Gen.Stat. § 136–106 (2011).

“The [municipality], within 90 days from the receipt of the answer shall file in the cause a plat of the land taken and such additional area as may be necessary to properly determine the damages[.]” N.C. Gen.Stat. § 136–106(c) (2011). “After the filing of the plat, the judge, upon motion and 10 days' notice by either the [municipality] or the owner, shall ... hear and determine any and all issues raised by the pleadings other than the issue of damages.” N.C. Gen.Stat. § 136–108 (2011) (emphasis added). The issue of just compensation alone is then submitted to the jury. Dep't of Transp. v. Rowe, 351 N.C. 172, 173–74, 521 S.E.2d 707, 708 (1999). Rulings under N.C.G.S. 136–108 are typically interlocutory in that they do “ ‘not determine the issues but direct[ ] some further proceeding preliminary to final decree.’ ” Rowe, 351 N.C. at 174, 521 S.E.2d at 708 (quoting Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)).

Generally, parties may not seek appeals of interlocutory orders before a final judgment is rendered. Id. at 174, 521 S.E.2d at 709. However, a party may immediately appeal an interlocutory order if that order “affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950); see alsoN.C. Gen.Stat. 1–277 (2011). Our Supreme Court recognized in Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967), that “orders from a condemnation hearing concerning title and area taken are ‘vital preliminary issues' that must be immediately appealed pursuant to N.C.G.S. § 1–277, which permits interlocutory appeals of determinations affecting substantial rights.” Rowe, 351 N.C. at 176, 521 S.E.2d at 709 (citation omitted) (emphasis added); see also Nuckles, 271 N.C. at 14, 155 S.E.2d at 784;N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005); Progress Energy Carolinas, Inc. v. Strickland, 181 N.C.App. 610, 612–13, 640 S.E.2d 856, 858 (2007). When appeal is mandatory, the right will be lost if appeal is not made within thirty days after entry of judgment. N.C.R.App. P. 3(c)(1).

In requiring immediate appeal of interlocutory orders involving issues of title and area taken, the Nuckles Court opined:

One of the purposes of G.S. 136–108 is to eliminate from the jury trial any question as to what land [Plaintiff] is condemning and any question as to its title. Therefore, should there be a fundamental error in the judgment resolving these vital preliminary issues, ordinary prudence requires an immediate appeal, for that is the proper method to obtain relief from legal errors. G.S. 1–277. It may not be obtained...