Town of Apex v. Rubin

Citation858 S.E.2d 387
Decision Date04 May 2021
Docket NumberNo. COA20-304,COA20-304
Parties TOWN OF APEX, Plaintiff, v. Beverly L. RUBIN, Defendant.
CourtCourt 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.

INMAN, Judge.

¶ 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.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 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.

1. The Direct Condemnation Action and Installation of the Sewer Pipe

¶ 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).

2. Litigation Following the First Appeal

¶ 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

3. The Order Denying Ms. Rubin Injunctive Relief

¶ 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:

4. [Ms. Rubin] did not plead any claim for relief entitling her to the relief requested in the Motion. [Ms. Rubin] could have requested the Court grant her injunctive relief before the sewer pipe was installed under her property, but she did not do so. [Ms. Rubin] did not request injunctive relief from the Court prior to the installation of the sewer line to prevent construction ... and did not request injunctive relief to close or remove the sewer pipe at the all other issues hearing before the Court.
5. Although the sewer pipe had been installed for approximately one year prior to the all issues hearing ... the Judgment does not address the actual installation, maintenance and use of the sewer pipe under [Ms. Rubin]’s property and does not require removal
....
11. On or about 27 July 2015 the Town constructed an underground sewer line 18 feet under the entire width of a narrow portion of Rubin's property.
....
14. The sewer line was installed prior to the entry of the Judgment, remains in place and in use, and serves approximately fifty (50) residential homes and/or lots in the Riley's Pond Subdivision ....

¶ 13 The trial court also made several findings and conclusions of law5 interpreting the effect of the Judgment:

2. The Judgment does not order the town to do any of the acts specified in Rule 70 of the Rules of Civil Procedure.
3. The Judgment does not require the return or delivery of real property as per N.C. Gen. Stat. § 1-302.

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:

1. The Judgment does not afford to [Ms. Rubin] any of the relief which she seeks in the Motion. State Highway Commission v. Thornton , 271 N.C. 227, 156 S.E.2d 248 (1967).
....
7. A writ of mandamus is
...

To continue reading

Request your trial
1 cases
  • Cnty. of Moore v. Acres
    • United States
    • Court of Appeal of North Carolina (US)
    • July 5, 2022
    ......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. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT