City of Charlotte v. Williams, — S.E.2d —-, 2011 WL 699446 (N.C.App. Mar 01, 2011) (NO. COA10-715)
This is a City of Charlotte Chapter 136 partial taking for a road improvement. In it, the defendant property owner filed a motion for a 108 hearing, a hearing pursuant to N.C. Gen. Stat. §136-108. Under that statute, a party may ask the judge to conduct a bench trial to “hear and determine any and all issues raised by the pleadings other than the issue of damages”.
In the 108 hearing in this case, the property owner asked the trial court to determine, among other things, that she had acquired an adjacent property through adverse possession. After the 108 hearing, the trial judge denied the property owner’s adverse possession claim, but did not make any findings of fact.
The North Carolina Court of Appeals held that the trial judge “was required by statute and case law to resolve the issues raised by Defendant’s motion and to make adequate findings and conclusions in support thereof.” Because the the trial judge’s order failed to do so, it violated N.C. Gen. Stat. §136-108 and N.C. Gen. Stat. §1A-1, Rule 52(a)(1), and “[formed] an inadequate basis for this Court to conduct any type of appellate review of the merits of Defendant’s adverse possession claim.” The Court of Appeals remanded the case to the trial court “for entry of a new order containing adequate findings of fact and conclusions of law.”
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