Town of Apex v. Rubin
| Decision Date | 04 May 2021 |
| Docket Number | No. COA20-305,COA20-305 |
| Citation | 858 S.E.2d 364 |
| Parties | TOWN OF APEX, Plaintiff, v. Beverly L. RUBIN, Defendant. |
| Court | North Carolina Court of Appeals |
Nexen Pruet, PLLC, Raleigh, by David P. Ferrell and Norman W. Shearin, for Plaintiff-Appellee.
Fox Rothschild LLP, Raleigh, by Matthew Nis Leerberg and Troy D. Shelton, and Howard, Stallings, From, Atkins, Angell & Davis, P.A., by Kenneth C. Haywood and B. Joan Davis, Raleigh, for Defendant-Appellant.
Johnston, Allison & Hord, P.A., Charlotte, by R. Susanne Todd and Maisha M. Blakeney, and Sever Storey, LLP, Winston-Salem, by Shiloh Daum, for amicus curiae North Carolina Advocates for Justice.
John Locke Foundation, by Jonathan D. Guze, Durham, amicus curiae.
¶ 1 This appeal arises from the same underlying facts at issue in Town of Apex v. Rubin , COA20-304, ––– N.C. App. ––––, 2021-NCCOA-187, ––– S.E.2d –––– (filed 4 May 2021) (hereinafter " Apex v. Rubin I "), filed concurrently with this opinion. In that action, as here, Plaintiff-Appellee Town of Apex ("the Town") asserts title to a sewer line installed on Defendant-Appellant Beverly L. Rubin's ("Ms. Rubin") land for a non-public purpose, in excess of the Town's eminent domain powers, and in violation of Ms. Rubin's constitutional rights. Both cases involve the same facts and some of the same legal issues. Apex v. Rubin I arises from post-judgment orders in a direct condemnation action. This appeal arises from interlocutory orders in a separate declaratory judgment action filed by the Town to settle the parties’ rights in the sewer line and prohibit Ms. Rubin from disturbing it after the Town's condemnation action was dismissed.
¶ 2 Ms. Rubin appeals from interlocutory orders denying her motion to dismiss the Town's declaratory judgment complaint and granting the Town's motion for a preliminary injunction. After careful review, we reverse in part and affirm in part the trial court's denial of Ms. Rubin's motion to dismiss. We vacate in part and affirm in part the preliminary injunction.
¶ 3 Many of the facts underlying this appeal are discussed in Apex v. Rubin I . But because this appeal arises out of a separate action with its own unique procedural history, we will summarize facts pertinent to the issues before us here.
¶ 4 In 2015, the Town filed a direct condemnation action and, under its statutory "quick take" powers, assumed title to a sewer easement across Ms. Rubin's property to connect a private residential development called Riley's Pond to the Town's sewer service. Ms. Rubin contested the direct condemnation action as for a non-public purpose but did not counterclaim for or otherwise pursue injunctive relief. While the direct condemnation was pending, the Town installed its sewer pipe on Ms. Rubin's property.
¶ 5 The trial court ultimately ruled in favor of Ms. Rubin, declared the taking was for an impermissible non-public purpose, and entered a judgment dismissing the Town's direct condemnation action in October 2016 ("the Judgment"). The Judgment was left undisturbed following a series of post-judgment motions and appeals by the Town. Town of Apex v. Rubin , 262 N.C. App. 148, 153, 821 S.E.2d 613, 616-17 (2018), temp. stay dissolved , disc. rev. denied , 372 N.C. 107, 825 S.E.2d 253 (2019).
¶ 6 Having prevailed in the direct condemnation action, Ms. Rubin asked the Town to remove the sewer line. The Town refused, leading Ms. Rubin to file a combined motion to enforce the Judgment and petition for writ of mandamus to compel the Town to remove the sewer pipe.
¶ 7 The Town responded to Ms. Rubin's motion in two ways. First, in the direct condemnation action, it filed a motion for relief on the basis that the Judgment voided the action ab initio , extinguished the trial court's jurisdiction, and rendered the installation of the sewer line a separate inverse condemnation. Second, the Town filed a new declaratory judgment lawsuit—the subject of this appeal—seeking to declare the sewer pipe installation an easement by inverse condemnation, limit Ms. Rubin's relief to that singular remedy, and enjoin her from removing the sewer line.
¶ 8 The facts alleged in the Town's declaratory judgment complaint largely restate the procedural history of the direct condemnation action through the filing of Ms. Rubin's post-judgment motions. Based on those facts, the Town asserts it is entitled to judgment declaring:
(1) ... that the installation of the sewer line on 27 July 2015 was an inverse taking, (2) that inverse condemnation is Rubin's sole remedy for the installation of the sewer pipe on her property, (3) that the remedy of inverse condemnation is time barred, (4) that given the Town's limited waiver of its defense of the statute of limitations, Rubin is entitled to a jury trial on the issue of the amount of compensation due for the inverse taking described in this complaint, (5) that ... relief be granted to order a jury trial to be held on the issue of the amount of compensation due for the inverse taking described in this complaint, (6) that ... relief be granted to order the amount deposited by the Town that is being held by the Clerk of Superior Court for the benefit of Rubin be deemed to be the Town's deposit of its estimate of just compensation for the inverse taking described in this complaint, (7) that the judgment is res judicata as to any claims by Rubin for injunctive relief or an extraordinary writ, and/or should not be applied prospectively ..., and (8) [that] the doctrines of laches, economic waste, and other similar equitable doctrines bar Defendant from causing the removal of the sewer pipe.
¶ 9 Ms. Rubin filed a motion to dismiss the Town's complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, arguing that the complaint was barred by res judicata and the prior action pending doctrine based on the Judgment and her then-unresolved post-judgment motions.
¶ 10 The trial court heard motions in both the direct condemnation action and the declaratory judgment action jointly and ruled for the Town in each. In the direct condemnation action, the trial court denied Ms. Rubin's motion to enforce the Judgment, denied Ms. Rubin's petition for writ of mandamus, and granted the Town's motion for relief from the Judgment. We review those rulings in Apex v. Rubin I . In the declaratory judgment action, the trial court denied Ms. Rubin's motion to dismiss and entered a preliminary injunction prohibiting Ms. Rubin from disturbing the sewer line. This decision addresses only the declaratory judgment action.1
¶ 11 The trial court's order denying Ms. Rubin's motion to dismiss, consistent with ordinary practice, contains no findings of fact or conclusions of law, and simply denies dismissal on the two grounds asserted by Ms. Rubin. In its preliminary injunction order, the trial court made findings of fact and conclusions of law establishing: (1) a dispute existed between the parties as to whether Ms. Rubin could disturb, destroy, or compel the Town to remove the sewer line; (2) an inverse condemnation had occurred as a result of the Town's installation of the sewer line and the subsequent dismissal of the direct condemnation action; (3) Ms. Rubin's sole remedy was an inverse condemnation claim; (4) removal of the sewer line would cause irreparable harm to the Town and the lots and/or homes served in Riley's Pond; (5) an injunction was necessary to protect the Town's rights and preserve the status quo during the course of litigation; (6) there are no practical alternatives available to the Town to serve Riley's Pond; and (7) the Town is likely to succeed on the merits of its claims for declaratory and injunctive relief.
¶ 12 Ms. Rubin noticed an appeal from both orders. The Town filed a motion to dismiss Ms. Rubin's appeal with this Court on 19 May 2020 on the ground that the orders below are interlocutory and do not affect a substantial right. Ms. Rubin then filed a conditional petition for writ of certiorari requesting review should this Court grant the Town's motion to dismiss.
¶ 13 Ms. Rubin broadly argues, as she does in Apex v. Rubin I , that the trial court's orders in this case stem from the erroneous conclusions that: (1) the Judgment does not grant her a right to mandatory injunctive relief to remove the pipe; and (2) the Town's installation of the pipe during the pendency of the direct condemnation action, absent any effort by Ms. Rubin to enjoin that installation, vested the Town with title to a sewer easement by inverse condemnation. Because those issues are necessary to the resolution of Apex v. Rubin I , she contends the Town's declaratory judgment action, and by extension its request for a preliminary injunction, are barred by res judicata and the prior action pending doctrine.
¶ 14 We first resolve the question of appellate jurisdiction. Both parties agree that Ms. Rubin seeks to appeal two interlocutory orders, and that such orders are not subject to immediate appellate review unless they affect a substantial right. N.C. Gen. Stat. § 7A-27(b)(3)(a) (2019). As explained below, we conclude both orders affect a substantial right.
¶ 15 Interlocutory orders rejecting a res judicata defense may affect a substantial right when " ‘(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.’ " Whitehurst Inv. Properties, LLC. v NewBridge Bank , 237 N.C. App. 92, 96, 764 S.E.2d 487, 490 (2014) (quoting Heritage Operating, L.P. v. N.C. Propane Exch., LLC , 219 N.C. App. 623, 628, 727 S.E.2d 311, 315 (2012) ).
¶ 16 Both prongs are satisfied here. Apex v. Rubin I and the declaratory judgment action arise out of...
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