Department of Transp. v. Rowe

• Decision Date: 03 December 1999
• Docket Number: No. 506PA98.,506PA98.
• Citation: 521 S.E.2d 707
• Court: North Carolina Supreme Court
• Parties: DEPARTMENT OF TRANSPORTATION v. Joe C. ROWE and wife, Sharon B. Rowe; Howard L. Pruitt, Jr., and wife, Georgia Pruitt; Robert W. Adams, Trustee; Aline D. Bowman; Frances Bowman Bollinger; Lois Bowman Moose; Dorothy Bowman Abernethy and husband, Kenneth H. Abernethy; Martha Bowman Caudill and husband, Jack Caudill; Appalachian Outdoor Advertising Co., Inc. (formerly Appalachian Poster Advertising Company, Inc.), Lessee; and Florence Bowman Bolick.

521 S.E.2d 707

DEPARTMENT OF TRANSPORTATION v. Joe C. ROWE and wife, Sharon B. Rowe; Howard L. Pruitt, Jr., and wife, Georgia Pruitt; Robert W. Adams, Trustee; Aline D. Bowman; Frances Bowman Bollinger; Lois Bowman Moose; Dorothy Bowman Abernethy and husband, Kenneth H. Abernethy; Martha Bowman Caudill and husband, Jack Caudill; Appalachian Outdoor Advertising Co., Inc. (formerly Appalachian Poster Advertising Company, Inc.), Lessee; and Florence Bowman Bolick.

No. 506PA98.

Supreme Court of North Carolina.

December 3, 1999.

Michael F. Easley, Attorney General, by J. Bruce McKinney, Assistant Attorney General, for plaintiff-appellee.

Lewis & Daggett, by Michael Lewis; and Bell, Davis & Pitt, P.A., by Stephen M. Russell, Winston-Salem, for defendant-appellants Joe and Sharon Rowe and Howard and Georgia Pruitt.

PARKER, Justice.

The issue in this case is whether defendants Joe C. Rowe, Sharon B. Rowe, Howard L. Pruitt, and Georgia M. Pruitt ("defendants")¹ were required to immediately appeal the trial court's orders from a condemnation hearing unifying their four remaining tracts of land. We hold that the interlocutory orders did not affect a substantial right of defendants and that defendants were not required to immediately appeal the trial court's orders.

Defendants owned 18.123 acres of land located in Catawba County, North Carolina. On 26 June 1995 plaintiff North Carolina Department of Transportation ("DOT") filed a complaint and declaration of taking in Superior Court, Catawba County, condemning 11.411 acres of defendants' land for a highway project and leaving them with 6.712 acres. DOT concluded that the resulting benefits to defendants' property outweighed any loss suffered by the taking. Therefore, DOT did not make a deposit of estimated compensation for the taking.

On 17 May 1996 defendants filed an answer contending that the "special and general benefits" provision of the condemnation statute, N.C.G.S. § 136-112(1) (1993), denied them equal protection in violation of the North Carolina and United States Constitutions. Defendants also challenged DOT's claim that all of defendants' remaining tracts of land should be considered in comparing the benefits of the taking to defendants' resulting loss.

A pretrial hearing was conducted pursuant to N.C.G.S. § 136-108 to settle issues arising from the pleadings other than the amount of damages. The evidence showed that, after the taking, defendants were left with four separate tracts of land identified as tracts A, B, C, and D. The right-of-way taken by DOT ran between tracts A and B, with tract A lying to the southeast and tract B lying to the northwest. Street rights-of-way deeded to the City of Hickory divided tract B from tract C and tract C from tract D. Neither of these rights-of-way was an existing street at the time of the taking.

On 8 May 1997 the trial court filed an order concluding that the four remaining tracts of land formed a physically unified parcel affected by the taking. On 16 May 1997 the trial court entered a second order denying defendants' constitutional challenge to N.C.G.S. § 136-112(1). Following a jury trial on the issue of just compensation, the trial court entered a final judgment on 17 June 1997 decreeing that defendants were not entitled to any compensation for the 11.411 acres of land taken by the DOT.

On appeal the Court of Appeals reversed the trial court and awarded a new trial based on the trial court's erroneous exclusion of impeachment evidence. However, the Court of Appeals also concluded that the trial court's rulings on the constitutionality of the special and general benefits provision of the condemnation statute and the unity of the tracts were interlocutory orders that prejudiced a substantial right of defendants. The Court of Appeals held that N.C. State Highway Comm'n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967), required defendants to immediately appeal those preliminary orders before proceeding to the damages trial. Thus, the rulings were not timely appealed; and the Court of Appeals refused to consider the rulings on their merits. For the reasons which follow, we reverse the decision of the Court of Appeals.

A ruling is interlocutory "if it does not determine the issues but directs some further proceeding preliminary to final decree." Greene v. Charlotte Chem. Lab., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961). In this case, the trial court's orders were clearly interlocutory. The trial court did not completely resolve the entire case. Instead, the court, pursuant to N.C.G.S. § 136-108, determined all relevant issues other than damages in anticipation of a jury trial on the issue of just compensation. Under Article 9, Chapter 136 of the General Statutes, either party to a condemnation action shall have a right of appeal "in the same manner as in any other civil actions." N.C.G.S. § 136-119 (1993).

In general, a party may not seek immediate appeal of an interlocutory order. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)

. A party may appeal an interlocutory order under two circumstances. First, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. § 1A-1, Rule 54(b) (1990). Second, a party may appeal an interlocutory order that "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, 231 N.C. at 362,

57 S.E.2d at 381; see also N.C.G.S. § 1-277 (1996); N.C.G.S. § 7A-27 (1995); Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486, 251 S.E.2d 443 (1979).

Defendants argue that the trial court's unification of the four remaining tracts did not affect a substantial right of defendants and that defendants were not required to immediately appeal that interlocutory order. We agree.

Whether an interlocutory ruling affects a substantial right requires consideration of "the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). This Court has previously determined those issues that affect a substantial right in the context of a condemnation proceeding. See Nuckles, 271 N.C. at 14, 155 S.E.2d at 784.

Parties to a condemnation proceeding must resolve all issues other than damages at a hearing pursuant to N.C.G.S. § 136-108. As now written N.C.G.S. § 136-108 provides:

After the filing of the plat, the judge, upon motion and 10 days' notice by either the Department of Transportation or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.

N.C.G.S. § 136-108 (1993). At the condemnation hearing in Nuckles, the parties contested the area of land being taken by the State Highway Commission ("Commission") based on the Commission's assertion that it had previously acquired a right-of-way over a portion of defendants' land. See Nuckles, 271 N.C. at 6, 155 S.E.2d at 778. This Court explained that the purpose of the N.C.G.S. § 136-108 condemnation...