Department of Transportation v. Webster

751 S.E.2d 220, 230 N.C. App. 468, 2013 WL 6073033, 2013 N.C. App. LEXIS 1208
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 2013
DocketNo. COA12-1546
StatusPublished
Cited by3 cases

This text of 751 S.E.2d 220 (Department of Transportation v. Webster) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. Webster, 751 S.E.2d 220, 230 N.C. App. 468, 2013 WL 6073033, 2013 N.C. App. LEXIS 1208 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

Where the issue before the trial court was whether increased traffic flow on a private road taken for public use was a compensable damage subject to determination by jury, it was proper for the trial court to conduct a section 108 hearing. Where the trial court determined that the area taken by DOT did not include a subsequent driveway permit and related effects of that permit, we affirm the trial court order excluding evidence of such driveway permit and effects at a subsequent trial on damages.

In 2007, the Department of Transportation (“DOT”) was involved in a highway construction project in Mooresville, North Carolina known as the “Brawley School Road widening project”. DOT condemned and took through eminent domain a 0.67 acre strip of land owned by defendants Ray and Dorothy Webster (“defendants”) after DOT and defendants were unable to agree on a purchase price for the property. The strip of land was taken from a portion of a 20-foot-wide private road known as Rescue Lane that intersected with Brawley School Road. Brawley School Road had been an undivided two-lane road that ran in front of defendant’s [470]*470property. The purpose of DOT’S Brawley School Road widening project was to improve motorist safety on Brawley School Road. DOT expanded Brawley School Road from two to four lanes and installed medians between east and westbound traffic, including a median break at the intersection of Brawley School Road and Rescue Lane.

Sometime before the commencement of the DOT project, defendants, fee simple owners of 32.93 acres of land adjacent to Brawley School Road, had dedicated the right of way of Rescue Lane to private use. Adjacent to defendants’ property, also bordered by Rescue Lane and Brawley School Road, was Brawley Market, a commercial development owned by Southern Properties, LLC. Following DOT’s expansion of Brawley School Road and the construction of medians separating east and westbound traffic, drivers entering and exiting Brawley Market directly from and onto Brawley School Road were limited to traveling west. To travel east on Brawley School Road, drivers exiting Brawley Market had to travel west and then make a u-tum at an available median break.

Once defendants’ property was condemned, a portion of Rescue Lane became a public roadway, maintained by DOT. On 26 February 2008, Southern Properties applied to DOT for a driveway permit to access Rescue Lane. Because of a break in the median at the intersection of Rescue Lane and Brawley School Road, traffic could enter and exit Rescue Lane onto Brawley School Road from or to the east and west. DOT approved Southern Properties’ application in March 2009, eighteen months after the taking of defendants’ property.

On or about 21 March 2012, DOT filed a motion for hearing pursuant to North Carolina General Statutes, section 136-108 requesting a determination of any and all issues raised by the pleadings other than the issue of damages, along with a memorandum in support of the motion for hearing. In its motion, DOT urged:

In particular, the Court, sitting without a jury pursuant to G.S. § 136-108, needs to hear and decide whether [DOT]’s actions in granting a driveway access to a business 18 months after the date of taking in this matter and not a part of the project constitutes a compensable taking of the defendants’ property, or whether said actions constitute a non-compensable exercise of the State’s police power.

On 27 March 2012, defendants filed an objection and motion to dismiss plaintiff’s motion for a section 108 hearing and, alternatively, [471]*471motion to continue the hearing. On 12 April 2012, the trial court entered an order granting defendants’ motion to continue the hearing.

A section 108 hearing was held during the 25 June 2012 Civil Session of Iredell County Superior Court, the Honorable Joseph N. Crosswhite presiding. On 8 August 2012, the trial court entered its order finding and concluding that the grant of Southern Properties’ driveway permit application was a function of DOT’S police power as a State agency. Any effects of the permit, including the impact of an increase in traffic along defendants’ property as a result of the adjacent driveway from Brawley Market, did not constitute a taking or result in compensable damages. The trial court ordered that evidence of the driveway permit and its effects “shall not be included as elements of damage at the trial of this matter.” Defendants appeal.

On appeal, defendants raise the following issues: whether the trial court erred (I) in overruling defendants’ objection and motion to dismiss the section 108 hearing; and (II) in excluding evidence and arguments regarding increased traffic on Rescue Lane at the trial of this action.

Appeal of an interlocutory order

“An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Edwards v. GE Lighting Sys., Inc., 193 N.C. App. 578, 581, 668 S.E.2d 114, 116 (2008) (citation and quotations omitted); see also N.C. Gen. Stat. § 1A-1, Rule 54(b) (2011). “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Hammer Publ’n v. Knights Party, 196 N.C. App. 342, 345, 674 S.E.2d 720, 722 (2009) (citation and quotations omitted). However, an order from a trial court’s judgment in a Section 108 hearing concerning title to property and area taken is a vital preliminary issue and is subject to immediate review on appeal:

One of the purposes of G.S. 136-108 was to eliminate from the jury trial any question as to what land... [is being condemned] and any question as to its title. Therefore, should there be a fundamental error in the judgment resolving these vital preliminary issues, ordinary prudence requires an immediate appeal, for that is the proper method to obtain relief from legal errors.

[472]*472N.C. State Highway Comm’n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967).

Defendants appeal from the trial court order ruling on a question of whether increased traffic flow on a private road taken for public use was a compensable damage subject to a jury’s determination. We grant defendant’s review of this order. See id.

I

Defendants argue that the matters raised by DOT in the section 108 hearing related solely to the issue of damages and thus, were outside the scope of the purpose of a section 108 hearing. Therefore, defendants contend the trial court erred in failing to dismiss DOT’S motion for the section 108 hearing. We disagree.

Preservation of arguments

Defendants begin their argument by asserting that the trial court failed to rule on their motion to dismiss DOT’S motion for a section 108 hearing. We note that generally, the failure to obtain a ruling on a motion presented to a trial court renders the argument raised in the motion unpreserved on appeal. See N.C.R. App. P.

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Cite This Page — Counsel Stack

Bluebook (online)
751 S.E.2d 220, 230 N.C. App. 468, 2013 WL 6073033, 2013 N.C. App. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-webster-ncctapp-2013.