Town of Apex v. Whitehurst, ___ N.C. App. ___, No. COA10-697 (Jul. 19, 2011)
This is a Chapter 136 sewer easement case, in which the defendant property owners (the “Property Owners”) argued that taking a sewer easement through their forested property served a private purpose, not a public purpose, and that it resulted in a total take of their property and inverse condemnation from damage to the remainder. The North Carolina Court of Appeals dismissed their appeal as untimely, but stepped through the procedural history anyway, and even hinted at an alternate method of dealing with similar counterclaims of inverse condemnation.
Summary of Inverse Condemnation Claim and Procedural History of the Case
The Town of Apex (“Apex”) filed this condemnation case to take a sanitary sewer easement across part of the subject property. In response, the Property Owners filed a motion to dismiss as well as an answer and counterclaimed for a declaration that Apex’s taking would result
“in a total taking of the property and that an inverse condemnation ha[d] occurred.”
Essentially, the Property Owners were claiming that Apex taking a sanitary sewer easement across part of the subject property resulted in an inverse condemnation of all of the subject property, turning this partial taking case into a total taking case.
Apex answered and moved to dismiss the Property Owners’ counterclaim and also moved for a hearing pursuant to N.C. Gen. Stat. 136-108, for the Trial Court “to determine all issues other than just compensation” (a “108 Hearing“).
Summary Judgment Granted to Apex on Public Purpose Issue & Counterclaim Dismissed
On February 10, 2009, the Trial Court granted summary to Apex on the issue of whether the taking was for a public purpose. The Property Owners had filed a motion for summary judgment on whether Apex took the sewer easement for a public purpose. At the hearing, Apex made its own motion for summary judgment on the same issue, and the Trial Court granted Apex’s motion. Later, on November 19, 2009, the Trial Court granted Apex’s motion to dismiss the Property Owners’ counterclaim.
After 108 Hearing, Court Rejected Property Owners’ Total Take Argument
Apex moved for a 108 Hearing on the issues of:
a. Whether or not the Town of Apex’s easement, as set forth in its Complaint, constitutes a taking of the entire tract; and
b. Whether or not the jury shall hear and determine the claims for compensation made by the Defendants because of the taking.
As the Court of Appeals later noted,
[o]n 17 February 2010, after a hearing regarding Apex’s motion for determination, the trial court determined that Apex had “condemned an easement constituting a partial taking[;]” thus rejecting defendants’ claim that the easement would in effect take the entire property as alleged by defendants’ dismissed counterclaim for inverse condemnation.
Property Owners Appealed
The Property Owners then appealed all three rulings against them:
- the February 10, 2009 order granting Apex summary judgment on the public purpose issue;
- the November 19, 2009 order dismissing the Property Owners’ counterclaim for a declaration that Apex’s partial taking constituted a total, inverse taking; and
- the February 17, 2010 order from the 108 Hearing, determining that Apex’s condemnation was a partial taking.
Ultimately, the Court of Appeals held that the Property Owners’ waited too long to appeal from the February 10, 2009 and November 19, 2009 orders. The Court of Appeals dismissed the appeal as to the February 17, 2010 order because the Property Owners failed to argue as to that order. Nevertheless, the Court’s analysis of the issues is instructive.
February 10, 2009 Summary Judgment Order on the Public Purpose Issue
The Court of Appeals noted that Defendants’ appeal of the order for summary judgment as to public purpose was interlocutory, because
the 10 February 2009 order determined that the purpose of the taking was for public use and left all other issues regarding the condemnation proceeding pending; accordingly, the 10 February 2009 order was interlocutory.
The Court of Appeals reviewed the rule that interlocutory orders are not immediately appealable, as well as the exception that
a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.
Further, in North Carolina condemnation cases,
orders from a condemnation hearing concerning title and area taken are vital preliminary issues that must be immediately appealed pursuant to N.C.G.S. § 1-277, which permits interlocutory appeals of determinations affecting substantial rights.
The Court of Appeals then noted that
We are unaware of any prior North Carolina case which has considered whether the issue of the purpose of a taking is a vital or non-vital “preliminary issue[.]”
The Court then held that
whether Apex is appropriating the property for private or public use is of vital importance as it determines whether Apex may exercise its power of eminent domain.
As we have concluded that the determination of whether a taking is for a public purpose is an inquiry of vital importance in condemnation cases, such questions affect a substantial right and are immediately appealable.
The Court went on, however, to determine that North Carolina Rules of Appellate Procedure required the Property Owners to file their appeal within thirty days of the February 10, 2009 order on the public purpose issue, and that the Property Owners were too late:
The “Certificate of Service” signed by the Deputy Clerk of Superior Court, Nancy H. Vann, states that a copy of the 10 February 2009 order was deposited in the mail on 11 February 2009. Defendants did not file a notice of appeal from the 10 February 2009 order until 2 March 2010; accordingly, defendants’ appeal is untimely, … and thus we dismiss any review of the 10 February 2009 order.
November 19, 2009 order dismissing the Property Owners’ counterclaim for declaration of inverse condemnation
Essentially, the Court of Appeals stepped through the same analysis in the appeal of this order, with the same result.
- The appeal was interlocutory.
- “The question of whether the taking was total or partial is a vital issue as it deals with the extent of the taking, i.e., the “area taken[.]” As defendants’ appeal relates to the “area taken[,]” the 19 November 2009 order was also immediately appealable.”
- But the Defendants appealed too late:
The “Certificate of Service” for the 19 November 2009 order, also signed by the Deputy Clerk of Superior Court, Nancy H. Vann, states that a copy of the order was deposited in the mail on 19 November 2009. Defendant’s notice of appeal was not filed until 2 March 2010. Accordingly, defendant’s appeal as to the 19 November 2009 order is untimely, see N.C.R. App. P. 3(c)(1) and we must dismiss it.
February 17, 2010 order after 108 Hearing
With respect to the February 17, 2010 order, the Property Owners failed to make any arguments on appeal, and the Court of Appeals dismissed their appeal as to that order.
Court of Appeals’ Interesting Footnote about Inverse Condemnation Claim
Effectively, the Court of Appeals dismissed the Property Owners’ appeal because they failed to comply with the North Carolina Rules of Appellate Procedure. The Court of Appeals could have done so summarily, but chose instead to step through the procedural history and claims asserted at the trial level.
In a footnote early in the opinion, however, the Court of Appeals did suggest one alternate path in a case like this one, in which a defendant property owner files a counterclaim, making a naked claim of inverse condemnation:
We note that defendants’ counterclaim for inverse condemnation was not filed in accordance with N.C. Gen. Stat. § 136-111, as defendants failed to allege a claim under N.C. Gen. Stat. § 136-111 or to file a memorandum of action and would be subject to dismissal for this reason alone. See generally Cape Fear Pub. Util. Auth. v. Costa, ___ N.C. App. ___, 697 S.E.2d 338, 342 (2010) (“Although [the] Defendant alleged in his counterclaim that he ‘specifically pleads the law of Inverse Condemnation,’ he completely failed to comply with the requirements of N.C. Gen. Stat. § 40A-51, both in the allegations of the counterclaim and by his failure to file a memorandum of action. . . . Defendant’s counterclaim for inverse condemnation was thus subject to dismissal for its failure to comply with N.C. Gen. Stat. § 40A-51.” (brackets omitted)). However, we do not address defendants’ appeal regarding their counterclaim for inverse condemnation as we conclude that it was untimely.
Links to this Case
- PDF Slip Opinion from North Carolina Court of Appeals
- Opinion published by Westlaw (for those with a Westlaw subscription)
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Christopher J. Simmons is an attorney licensed in North Carolina and Florida and practicing as an associate city attorney with the City of Raleigh, North Carolina.