Beroth Oil Co. v. N.C. Dep't of Transp., 256 N.C. App. 401

Background

In 1987 North Carolina enacted the Map Act, allowing NCDOT to record corridor maps that indefinitely restrict landowners' rights to build, subdivide, or obtain permits within mapped corridors without obligating NCDOT to build the project.
Plaintiffs (211 landowners) own property within the Northern Beltway Western (recorded 1997) or Eastern (recorded 2008) Loop corridors; they filed inverse condemnation claims alleging the Map Act recordations effected takings.
On remand from earlier appeals (this Court and the NC Supreme Court in Kirby I/II), the trial court granted partial judgment/summary judgment for plaintiffs, found a regulatory taking, and directed procedures for NCDOT to file plats, appraise properties, deposit estimated compensation under N.C.G.S. § 136-111, and for subsequent hearings/trials on damages.
NCDOT appealed the interlocutory order, claiming (1) interlocutory review is warranted because the order affects title/area-taken rights and (2) sovereign immunity / separation-of-powers concerns (it cannot be compelled to expend treasury funds absent legislative appropriation).
The Court of Appeals dismissed the appeal for lack of interlocutory jurisdiction: NCDOT had not shown a substantial right would be lost absent immediate review under the two-part substantial-right test; moreover, sovereign immunity was inapplicable because plaintiffs fall within the Chapter 136 eminent-domain statutory framework and the State had effectively admitted the facts constituting a taking.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether interlocutory appeal is proper because order affects title/area taken	Plaintiffs: trial court properly set procedures for plats, hearings, and damages under Article 9 and §136-111	NCDOT: orders forcing plats/appraisals/deposits affect condemnor's substantial rights (title/area issues) and require immediate review	Court: Title/area substantial-right rule benefits parties holding property interests; NCDOT (as condemnor) has no such vested interest here—no interlocutory review on that ground
Whether sovereign immunity bars interlocutory appeal or relief	Plaintiffs: sovereign immunity waived where State exercises eminent domain and Chapter 136 provides statutory remedies	NCDOT: sovereign immunity and separation-of-powers prevent judicially compelling expenditures or deposits absent appropriation; thus appealable	Court: Sovereign immunity does not protect State here (statutory scheme and prior admissions bring plaintiffs within §136-111); separation-of-powers argument not shown to create a lost substantial right — appeal dismissed
Whether NCDOT’s post- July 15, 2015 general denials undo earlier admissions that a taking occurred	Plaintiffs: judicial estoppel applies because NCDOT previously admitted facts (map recordings/restrictions) and later inconsistent denials would harm judicial integrity and plaintiffs	NCDOT: later general denials negate admission of a taking and thus §136-111 procedures cannot be compelled	Court: Judicial estoppel applies — prior factual admissions were accepted by courts (including Supreme Court); later inconsistent denials deemed legally untenable; plaintiffs are within §136-111 framework
Whether trial court may require NCDOT to follow §136-111 procedures (plats, deposits, appraisals) before final judgment	Plaintiffs: once taking is admitted/established, §136-111 mandates deposit, platting, and procedural steps to protect landowners' right to just compensation	NCDOT: ordering deposits/plats now forces executive to expend state funds and is premature absent admission of taking	Court: Because facts constituting a taking were admitted and judicially accepted, §136-111 applies and trial court properly ordered those procedures; interlocutory appeal dismissed

Key Cases Cited

Kirby v. N.C. Dep't of Transp., 368 N.C. 847, 786 S.E.2d 919 (N.C. 2016) (Supreme Court held Map Act recordation effected a taking and remanded valuation to trier of fact)
Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (N.C. 2004) (adopted factors for applying judicial estoppel)
Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276 (N.C. 1992) (sovereign immunity cannot bar enforcement of constitutional rights)
N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 619 S.E.2d 495 (N.C. 2005) (orders concerning title/area taken can affect substantial rights of property holders)
Ferrell v. Dept. of Transp., 334 N.C. 650, 435 S.E.2d 309 (N.C. 1993) (statutory eminent-domain framework waives sovereign immunity for compensation claims)
Wachovia Realty v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (N.C. 1977) (interlocutory orders compelling payment can affect substantial rights and be reviewable)