226 N.C. App. 434
N.C. Ct. App.2013Background
- City condemned nine parcels of Defendant's property for a utility easement; dispute whether the taking affected a single parent tract and the scope of land taken.
- First N.C. Gen. Stat. § 136-108 hearing addressed whether the nine parcels or only two parcels constituted the taking; gathered that only just compensation remained.
- Trial court found the taking encompassed all nine parcels and that the issue remaining was just compensation; the hearing did not rule on access to Bloomery Road.
- Defendant later sought a second §136-108 hearing (for issues other than damages) to address access loss; Plaintiff opposed arguing no second hearing was appropriate.
- Second order denied the second §136-108 hearing; Defendant appealed; issue of access remained contested and the appeal followed approximately 32 months after the first hearing.
- This appeal concerns whether the first order resolved access issues and whether a second §136-108 hearing was properly denied; court ultimately remands for just compensation and affirms denial of the second hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the first order determine access to Bloomery Road? | City contends the order addressed only compensation and did not decide access. | Batten contends access was determined or should have been considered. | First order did not resolve access; improper basis for second hearing; but result affirmed on other grounds. |
| Was the second §136-108 hearing properly denied? | City argues no error in denying a second hearing. | Batten argues the court should consider access loss at a second hearing. | Second hearing denial affirmed; grounds in opinion focused on procedure and timing. |
| May a party appeal an interlocutory condemnation order immediately under §1-277 for title/area issues? | Immediate appeal is required to protect substantial rights when title/area are at stake. | Not explicitly detailed in opinion. | Immediate appeal mandatory for title/area issues; nonappeal within 30 days results in loss of right; embodies Nuckles/Rowe framework. |
| Did the first order resolve the issue of access so as to foreclose later challenges? | The order limited issues to just compensation and did not decide access. | Access could have been argued; not raised in the 2010 hearing. | Defendant failed to appeal the first order timely; may not relitigate via second §136-108 hearing; remand for just compensation. |
Key Cases Cited
- Rowe v. N.C. Dept. of Transportation, 351 N.C. 172 (1999) (interlocutory §136-108 hearings address issues other than damages; appeal timing matters)
- Nuckles v. Highway Commission, 271 N.C. 1 (1967) (mandatory interlocutory appeal for title/area determinations under condemnation)
- DeHart v. N.C. Dept. of Transportation, 195 N.C. App. 417 (2009) (§136-108 scope includes title, area, etc.; party must raise all issues in the hearing)
- Veazey v. City of Durham, 231 N.C. 357 (1950) (immediate appeal where a substantial right would be injured if not corrected prior to final judgment)