Town of Apex v. Rubin
Citation | 858 S.E.2d 387 |
Decision Date | 04 May 2021 |
Docket Number | No. COA20-304,COA20-304 |
Parties | TOWN OF APEX, Plaintiff, v. Beverly L. RUBIN, Defendant. |
Court | Court of Appeal of North Carolina (US) |
Nexsen 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., by Susanne Todd, Charlotte, and Maisha M. Blakeney, and Sever Storey, LLP, by Shiloh Daum, Winston-Salem, for amicus curiae North Carolina Advocates for Justice.
John Locke Foundation, by Jonathan D. Guze, Durham, amicus curiae.
¶ 1 Our Federal and State Constitutions protect us, our homes, and our lands from unrestrained government intrusion. Police cannot roam about our private property unfettered. U.S. Const. amend. IV ; N.C. Const. art. I § 20. The military cannot forcibly occupy our homes during peacetime. U.S. Const. amend. III ; N.C. Const. art. I § 31. And, most pertinent to this appeal, the State cannot take our property without both a public purpose and payment of just compensation. U.S. Const. amend. V ; N.C. Const. art. I § 19.
¶ 2 Plaintiff-Appellee Town of Apex ("the Town") asks this Court to uphold the Town's continuing intrusion onto the land of a private citizen through a circuitous and strained application of North Carolina law on eminent domain and inverse condemnations. The Town's position, in essence and when taken to its logical conclusion, is as follows: (1) if a municipality occupies and takes a person's private property for no public purpose whatsoever, that private landowner can do nothing to physically recover her land or oust the municipality; (2) if the encroachment decreases the property's value, then the landowner's sole remedy is compensation by inverse condemnation; and (3) in all other instances, a landowner is powerless to recover or otherwise vindicate her constitutional rights. This is not the law, nor can it be consistent with our Federal and State Constitutions.
¶ 3 Defendant-Appellant Beverly L. Rubin ("Ms. Rubin") appeals from orders denying her motion to enforce a judgment in her favor in a direct condemnation action and granting the Town's motion to be relieved from that judgment. She asserts that, having successfully recovered title to her land after the Town's unlawful taking, she is entitled to repossess her property free of a sewer pipe installed by the Town. We agree with Ms. Rubin that mandatory injunctive relief may be available to her, but hold that it is not available in the direct condemnation action that was taken to final judgment without a request for or adjudication concerning the availability of injunctive relief. Instead, she may pursue mandatory injunctive relief against the Town to remedy its continuing encroachment through a claim for trespass.
¶ 4 Many of the facts underlying this appeal were summarized in our prior decision, Town of Apex v. Rubin , 262 N.C. App. 148, 821 S.E.2d 613 (2018). However, because we now address post-judgment motions that were entered after that decision, a brief recitation of the factual and procedural history is warranted.
¶ 5 Ms. Rubin owns a tract of land in rural Wake County. In 2012 and 2013, a local real estate developer, Brad Zadell ("Mr. Zadell"), purchased several parcels to the east and west of Ms. Rubin's land with the intention of improving and selling them for residential development. Rubin , 262 N.C. App. at 149, 821 S.E.2d at 614. The western tract, known as Arcadia West, received sewer service from the Town, while the eastern tract, Riley's Pond, had no such access. Id. Mr. Zadell asked Ms. Rubin if she would grant him an easement to connect Riley's Pond to the Town's sewer service. Id. Ms. Rubin declined. Id.
¶ 6 Undeterred, Mr. Zadell turned to the Town's utilities director, asking for the Town to take the sewer easement by eminent domain.1 Id. In 2015, The Town and Mr. Zadell agreed that: (1) the Town would pursue a direct condemnation action to seize a sewer easement across Ms. Rubin's property; and (2) Mr. Zadell would cover any and all costs incurred by the Town in the exercise of its eminent domain powers. Id. at 150, 821 S.E.2d at 615. A few weeks after entering into the agreement, Mr. Zadell contracted to sell Riley's Pond at a $2.5 million profit. Id.
¶ 7 In March 2015, the Town council voted to pursue a direct condemnation action for a sewer line easement across Mr. Rubin's land. Id. It filed the direct condemnation action the following month and used its statutory "quick-take" powers2 to obtain immediate title to a 40’ easement running across Ms. Rubin's property for the installation and maintenance of sewer lines "above, in, on, over, above, [sic] under, through, and across" the easement area. Ms. Rubin timely filed an answer contesting the taking as illegal and unconstitutional, but she did not pursue any injunctive relief to restrain the Town from constructing the sewer line.
¶ 8 After Ms. Rubin filed her answer, and while her challenge to the condemnation action was pending, the Town installed a sewer line within the 40’ easement. The trial court later resolved Ms. Rubin's challenge to the condemnation and entered a judgment (the "Judgment") concluding the taking was not for a public purpose, even though the sewer line would serve the Riley's Pond subdivision. The Judgment declared the Town's "claim to [Ms. Rubin's] property by Eminent Domain ... null and void" and dismissed the direct condemnation action. The Judgment was left undisturbed following a lengthy series of post-judgment motions and appeals. See id. at 153, 821 S.E.2d at 616-17 (2018), temp. stay dissolved, disc. rev. denied , 372 N.C. 107, 825 S.E.2d 253 (2019).
¶ 9 After this Court's decision in the prior appeal, Ms. Rubin filed a combined motion and petition for writ of mandamus asking the trial court to compel the Town to remove the sewer line. Ms. Rubin sought this relief under several theories, including: (1) N.C. Gen. Stat. § 136-114 (2019), which gives trial courts in direct condemnation actions "the power to make all the necessary orders and rules of procedure necessary to carry into effect the object and intent of this Chapter[;]" (2) N.C. Gen. Stat. § 1-302 (2019) and Rule 70 of the North Carolina Rules of Civil Procedure, which collectively authorize trial courts to compel a party to comply with a judgment directing the conveyance of land; (3) by writ of mandamus to compel the Town to perform the act of removing the pipes; and (4) through the trial court's inherent powers to enforce its own orders.3
¶ 10 The Town responded to Ms. Rubin's motion in two ways. First, it filed a motion for relief in the direct condemnation action 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 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.
¶ 11 The trial court heard motions in the two actions 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. In the declaratory judgment action, the trial court denied a motion to dismiss filed by Ms. Rubin and entered a preliminary injunction prohibiting Ms. Rubin from disturbing the sewer line. This decision addresses only the direct condemnation action.4
¶ 12 In the first of two orders in the direct condemnation action, the trial court denied Ms. Rubin's motion for injunctive relief, based in part on the following facts:
¶ 13 The trial court also made several findings and conclusions of law5 interpreting the effect of the Judgment:
The trial court also entered conclusions of law rejecting Ms. Rubin's arguments for injunctive relief and concluding that the Town had taken an easement by inverse condemnation:
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......at 484-85, 57 S.E.2d at 819-20 (citation and quotation marks omitted); see also Town of Apex v. Whitehurst , 213 N.C. App. 579, 584, 712 S.E.2d 898, 902 (2011).284 N.C.App. 256 ¶ 21 ...Rubin , 277 N.C. App. 328, 2021-NCCOA-187, ¶ 18, 858 S.E.2d 387 (emphasis omitted) (quoting Wilkie v. ......