in the Court of Appeals 13 November 2017.
by Plaintiff from orders entered 23 February 2017 and 25
April 2017 by Judge John O. Craig, III in Superior Court,
Forsyth County No. 16 CVS 7555.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General James M. Stanley, Jr., Assistant Attorney General J.
Aldean Webster, III, Assistant Attorney General Alexandra M.
Hightower, and Assistant Attorney General William A. Smith,
Hendrick Bryant Nerhood Sanders & Otis, LLP, by Matthew
H. Bryant, T. Paul Hendrick, Timothy Nerhood, W. Kirk
Sanders, and Kenneth C. Otis III, for Defendant-Appellee
Robert B. Stimpson.
Factual and Procedural History
appeal involves Article 2E, Chapter 136 of the North Carolina
General Statutes, "Transportation Corridor Official Map
Act, " (the "Map Act"), that has been the
source of substantial litigation involving hundreds of real
property owners. These "Map Act" cases have been
before this Court and our Supreme Court on multiple
occasions, and the general factual and procedural history has
been repeatedly and thoroughly addressed many times. See,
e.g., Beroth Oil Co. v. N.C. Dep't of Transp., 220
N.C.App. 419, 725 S.E.2d 651 (2012) ("Beroth I
"), affd in part, vacated in part, Beroth Oil Co. v.
N.C. Dep't of Transp., 367 N.C. 333, 757 S.E.2d 466
(2014) ("Beroth II "); Beroth Oil Co.
v. N.C. Dep't of Transp., __ N.C. __ App., 808
S.E.2d 488 (2017) ("Beroth III "); see
also Kirby v. N.C. Dep't of Transp., 239 N.C.App.
345, 769 S.E.2d 218 (2015) ("Kirby I
"), affd by separate opinion, Kirby v. N.C.
Dep't of Transp., 368 N.C. 847, 786 S.E.2d 919
(2016) ("Kirby II ").
Procedural History of the Present Matter
present matter involves real property located in Forsyth
County (the "Property") owned by Robert B. Stimpson
("Defendant"). Pursuant to its authority under N.C.
Gen. Stat. § 136-44.50 (2015) of the Map Act, the North
Carolina Department of Transportation ("DOT")
recorded a Transportation (roadway) Corridor Map for State
Project 34839 (the "Corridor Map") with the
Register of Deeds, Forsyth County, on 26 November 2008, as
part of DOT's Northern Beltway Project (the
"Project"). The Property was included in the Corridor
Map, and thus subject to the provisions of the Map Act
related to the Project. Defendant filed a complaint in an
earlier action ("Defendant's Action") on 9 May
2016, seeking, inter alia, a declaratory judgment
that the Property had been taken through inverse condemnation
by DOT pursuant to DOT's actions under the Map Act, and
requesting DOT be ordered "to purchase [the] Property
for the inverse condemnation[.]" Defendant moved for
judgment on the pleadings, and the trial court consolidated
Defendant's Action with a number of additional related
actions pursuant to N.C. Gen. Stat. § 1A-1, Rule
42.Beroth Oil Co. v. N.C. Dep't. of
Transp, 2016 WL 9234026, *1 ( N.C. Super. 2016)
("Beroth Order"). With regard to the
motion in Defendant's Action, the Beroth Order
determined that (1) the Property was located in the area of
the Project; (2) certain property rights of Defendant's
were taken by DOT pursuant to inverse condemnation; (3) the
trial court was not prepared to rule on whether the taking
constituted a fee simple taking; and (4) the issue of the
nature of the taking and damages would be revisited.
Id. at *1-2. The trial court ordered DOT to comply
with the procedural requirements of Article 9, Chapter 136,
"Condemnation, " for all the plaintiffs; including
filing plats, obtaining appraisals, and depositing good faith
estimates of the value of the properties involved.
Id. at *2-3. DOT appealed the Beroth Order,
but this Court dismissed the appeal as an improper
interlocutory appeal. Beroth III, __ N.C. App. at__,
808 S.E.2d at 502.
filed the complaint in the present action on 13 December
2016, seeking to take the Property pursuant to its powers of
direct condemnation under Article 9, Chapter 136. Defendant
filed a motion to dismiss on 11 January 2017 arguing,
inter alia: "As there is a prior pending action
[Defendant's Action] and judgment on the exact property
and area and interest/interest valuation, and involving the
same parties, the Prior Pending action and judgment for
taking precludes [DOT] filing and prosecuting this
action." The trial court granted Defendant's motion
to dismiss by order entered 23 February 2017. DOT filed a
motion for relief from judgment pursuant to Rule 60(b)(6) on
24 March 2017. The trial court entered an order on 25 April
2017 denying DOT's motion to reconsider its 23 February
2017 ruling dismissing the action. DOT appeals.
order to address the relevant issues brought forth in the
present case, we review the provisions of Article 9, Chapter
136, which concerns condemnation by DOT, both direct and
inverse. See N.C. Gen. Stat. §§ 136-103(a)
and -111 (2017). It is the duty of DOT to institute an action
when it determines condemnation of real property for DOT
purposes is necessary. N.C. G.S. § 136-103(a) ("In
case condemnation shall become necessary [DOT] shall
institute a civil action by filing in the superior court of
any county in which the land is located a complaint and a
declaration of taking declaring that such land, easement, or
interest therein is thereby taken for the use of
[DOT]."). When DOT properly initiates an action pursuant
to N.C. G.S. § 136-103, the relevant property is deemed
condemned, title to the property immediately vests in DOT,
and DOT obtains all associated rights. N.C. Gen. Stat. §
if DOT fails to initiate condemnation proceedings pursuant to
N.C. G.S. § 136-103, a person with an interest in a
property may initiate inverse condemnation proceedings to
determine whether a taking by DOT has occurred:
Any person whose land or compensable interest therein has
been taken by an intentional or unintentional act or omission
of [DOT] and no complaint and declaration of taking has been
filed by [DOT] may, within 24 months of the date of the
taking of the affected property or interest therein or the
completion of the project involving the taking, whichever
shall occur later, file a complaint in the superior court . .
.; said complaint shall . . . allege with particularity the
facts which constitute said taking together with the dates
that they allegedly occurred; said complaint shall describe
the property allegedly owned by said parties and shall
describe the area and interests allegedly taken. . . . .
The procedure hereinbefore set out shall be followed for
the purpose of determining all matters raised by the
pleadings and the determination of just compensation.
N.C. G.S. § 136-111 (emphasis added). Therefore, the
procedures set forth in Article 9 pertain to takings
established pursuant to both N.C. G.S. § 136-103 and
N.C. G.S. § 136-111. See also Berta v. Highway
Comm., 36 N.C.App. 749, 754, 245 S.E.2d 409, 412 (1978).
Although N.C. G.S. § 136-111 does not expressly state
when an inverse condemnation taking established pursuant to
that section is deemed to have occurred, this Court has held
that, once a taking has been established pursuant to N.C.
G.S. § 136-111, the taking shall be deemed to have
occurred at the time the injury to the property resulting in
the taking occurred. Berta, 36 N.C.App. at 753-54,
245 S.E.2d at 411-12. Our Supreme Court held in Kirby
II that, for the properties affected, a taking occurs at
the time DOT records corridor maps pursuant to the Map Act.
Kirby II, 368 N.C. at 856, 786 S.E.2d at 926
("By recording the corridor maps at issue here, which
restricted plaintiffs' rights to improve, develop, and
subdivide their property for an indefinite period of time,
NCDOT effectuated a taking of fundamental property
prevail on [an] inverse condemnation claim, [the] plaintiffs
must show that their land or compensable interest therein has
been taken.'" Beroth II, 367 N.C. at 340,
757 S.E.2d at 472 (citation omitted). In the present case,
the Beroth Order established that a compensable
interest in the Property was taken by DOT through inverse
condemnation. Beroth Order, 2016 WL 9234026, *2. DOT
does not contest that a taking of a compensable interest in
the Property occurred pursuant to the 26 November 2008
recordation of the Corridor Map. In an action for either
direct condemnation or inverse condemnation, the trial court
first makes a determination of all issues other than damages:
[T]he [trial] judge . . . shall, either in or out of term,
hear and determine any and all issues raised by the pleadings
other than the issue of damages, including, but not limited
to, if controverted, questions of necessary and proper