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Department of Transportation v. Stimpson

Court of Appeals of North Carolina

March 20, 2018


          Heard in the Court of Appeals 13 November 2017.

         Appeal 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, for Plaintiff-Appellant.

          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.

          McGEE, Chief Judge.

          I. Factual and Procedural History

         A. General

         This 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 ").

         B. Procedural History of the Present Matter

         The 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").[1] The Property was included in the Corridor Map, and thus subject to the provisions of the Map Act related to the Project.[2] 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.[3]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.

         DOT 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.

         II. Analysis

         A. Condemnation

         In 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. § 136-104 (2017).

         However, 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 rights.").

         "To 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 ...

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