in the Court of Appeals 16 January 2019
by Defendant from judgment entered 14 December 2017 by Judge
Susan E. Bray in Wilkes County No. 15-CVS-1056 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Alexandra M. Hightower, for the Plaintiff-Appellee.
Sever-Storey, LLP, by Shiloh Daum, for the
a condemnation action brought by Plaintiff Department of
Transportation ("DOT") for the partial taking of
land owned by Defendant Hutchinsons, LLC
("Hutchinsons"). On the day the trial in the matter
had been scheduled, the trial court heard various motions
filed by Hutchinsons, primarily concerning Hutchinsons'
position that DOT took more interests in its property than
DOT had claimed. The trial court denied or dismissed those
motions. The trial court proceeded, and subsequently entered
judgment awarding Hutchinsons no further damages than the
amount of DOT's deposit. Hutchinsons appeals from various
orders considered the day of trial and from the final
judgment. After careful review, we affirm.
action concerns certain property in Wilkes County which
straddles North Carolina Highway 268 (the
"Property") owned by Hutchinsons.
September 2015, DOT commenced this action against
Hutchinsons, condemning part of the Property for the widening
of Highway 268.
eleven (11) months later, in August 2016, Hutchinsons filed
matter was eventually assigned a trial date of 21 August
2017. However, about a month before the scheduled trial date,
Hutchinsons requested a continuance. The trial court granted
the request, setting 4 December 2017 as the new trial date.
days before the scheduled 4 December 2017 trial, Hutchinsons
filed three motions. These motions were based primarily on
its belief that, during the course of the highway widening
project, DOT had taken additional interests in the Property,
that is, interests outside of the interests indicated in
DOT's complaint. Specifically, Hutchinsons moved: (1) to
amend its pleading to add an inverse condemnation claim for
the alleged additional taking; (2) for a Section 108
hearing to determine the actual areas/interests in
the Property taken (the "Section 108 motion"); and
(3) for a continuance of the trial.
December 2017, the date the matter was scheduled for trial,
the trial court heard Hutchinsons' three motions. During
the hearing, the trial court orally dismissed the Section 108
motion and denied the two other motions. The trial court then
reduced its ruling on the two denied motions to written
orders but did not immediately reduce its dismissal of the
Section 108 hearing motion to writing. Hutchinsons then
submitted a written notice of appeal of "the Order
entered" and a motion for a stay of any further
proceedings pending the appeal. The trial court denied
Hutchinsons' motion for a stay and proceeded to consider
the issue of damages.
next day, on 5 December 2017, the trial court entered a
written order dismissing Hutchinsons' motion for a
Section 108 hearing. The trial court also entered a written
order striking Hutchinsons' original Answer as a sanction
for certain discovery violations.
following week, on 14 December 2017, the trial court entered
a final judgment for DOT in the amount of its initial
deposit, thereby awarding Hutchinsons no further damages for
the taking described in DOT's Complaint, based on the
fact that Hutchinsons' Answer challenging the amount of
the deposit had been stricken. Hutchinsons timely filed s
second notice of appeal, an appeal from this final judgment.
makes three arguments on appeal. We address each of