Town of Apex v. Rubin

• Court: Supreme Court of North Carolina
• Decided: August 22, 2025
• Docket: 410PA18-2
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA No. 206PA21 No. 410PA18-2 Filed 22 August 2025

TOWN OF APEX

v. BEVERLY L. RUBIN

Consolidated cases on discretionary review pursuant to N.C.G.S. § 7A-31 of the

unanimous decisions of the Court of Appeals, 277 N.C. App. 328 (2021), and 277 N.C.

App. 357 (2021). In the first decision, the Court of Appeals vacated in part, affirmed

in part, and reversed in part an order entered in file no. 15-CVS-5836 on 21 January

2020 by Judge G. Bryan Collins in Superior Court, Wake County. In the second

decision, the Court of Appeals reversed in part, vacated in part, and affirmed in part

an interlocutory order entered in file no. 19-CVS-6295 also on 21 January 2020 by

Judge G. Bryan Collins in Superior Court, Wake County and remanded. Heard in

the Supreme Court on 24 September 2024.

David P. Ferrell & George T. Smith III for plaintiff-appellant.

Fox Rothschild LLP, by Matthew Nis Leerberg; and Howard, Stallings, From, Atkins, Angell, & Davis, P.A., by Kenneth Haywood & B. Joan Davis, for defendant-appellee.

R. Susanne Todd and Shiloh Daum for North Carolina Advocates for Justice, amicus curiae.

Erin E. Wilcox for Pacific Legal Foundation, amicus curiae. TOWN OF APEX V. RUBIN

Opinion of the Court

Sever-Storey, LLP, by Shiloh Daum, for North Carolina Advocates for Justice, amicus curiae.

RIGGS, Justice.

The North Carolina Constitution only allows the taking of private property by

eminent domain if the taking is for public use and the landowner receives just

compensation for the taking. See N.C. Const. art. I, § 19. The North Carolina General

Assembly has given municipalities this power of eminent domain with the caveat that

the power “may not be employed to take private property for a purely private

purpose.” Carolina Tel. & Tel. Co. v. McLeod, 321 N.C. 426, 429 (1988); see also

N.C.G.S. § 40A-3 (2023).

We are asked if a trial court determines that a municipality’s exercise of

eminent domain was for a private purpose, rather than a public purpose, does title

and right of possession revest with the original landowner? We hold it does. After

all, deciding otherwise would render the Takings Clause meaningless. And if the

municipality has already completed construction on the taken land, our courts

possess the inherent authority to restore the land to its pre-construction status by

issuing a mandatory injunction. Whether such an injunction issues depends on a

weighing of the “equities, hardships, and the interests of the public and of third

persons,” and that weighing rests within the province of a trial court. Roberts v.

Madison Cnty. Realtors Ass’n, 344 N.C. 394, 399 (1996). Thus, as to Town of Apex v.

Rubin (Apex II), 277 N.C. App. 328 (2021), we affirm in part and reverse in part the

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Court of Appeals’ decision and remand for the trial court to determine a remedy for

Apex’s continuing trespass. As to Town of Apex v. Rubin (Apex III), 277 N.C. App.

357 (2021), we vacate the Court of Appeals’ decision and remand with instructions

for further remand to the trial court to dismiss the 2019 action with prejudice.

I. Factual Background

The Town of Apex is a growing town located in Wake County, North Carolina.

In 2010, defendant Beverly L. Rubin purchased land on Olive Chapel Road in a rural,

unincorporated section of Wake County adjacent to Apex.1 When she purchased the

property, Ms. Rubin’s lot abutted several largely undeveloped tracts named after

their respective owners: the Ball, Evans, Park, Eatman and Walden tracts. The Ball,

Evans, and Park tracts established the eastern perimeter of Ms. Rubin’s land. The

Eatman track was located next to Ms. Rubin’s property on the west and the Walden

tract bordered the south perimeter. Neither Ms. Rubin’s land nor the adjacent tracts

were originally within Apex’s town limits.

In 2012, a private real estate developer, Bradley Zadell, began acquiring the

land surrounding Ms. Rubin’s property. First, Mr. Zadell purchased the Park tract

in November 2012. Mr. Zadell applied to have the Park property annexed by the town

of Apex and rezoned to increase the number of homes that could be built on the land.

Apex approved the annexation and rezoning even though no town sewer lines served

1 Although unrelated to this matter, in March 2012, Apex exercised eminent domain

to acquire a water utility easement along the northern tip of Ms. Rubin’s property.

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the property. In 2013, Mr. Zadell purchased the adjacent Evans tract which also did

not have sewer service. Mr. Zadell then applied to have this tract annexed and

rezoned. Apex also approved that application. Mr. Zadell combined the tracts into a

subdivision named Riley’s Pond.

In May 2014, Mr. Zadell purchased the Eatman tract to the west of Ms. Rubin’s

property and named the property Arcadia West. Arcadia West was the only parcel

connected to the town sewer system. The town sewer line runs along the south edge

of Arcadia West.

To develop Riley’s Pond, Mr. Zadell needed sewer service for the property. The

record indicates he had three options to address this need. First, he could install a

pump station on the property and a pumped sanitary line running north to Olive

Chapel Road, and he could then connect the pumped sewer line to the sewer lines on

his Arcadia West property. Second, he could purchase an easement across the Ball

and Walden tracks, allowing him to install a gravity sewer line that connected to the

town sanitary line south of Riley’s Pond on the Walden track. Third, he could

purchase an easement across Ms. Rubin’s property to run a gravity sanitary line to

connect to the sanitary line on the Acadia West property.

Mr. Zadell approached Ms. Rubin with a proposal to purchase an easement

across her land for the sanitary line. Ms. Rubin declined the offer. The owners of the

Ball tract also declined to sell Mr. Zadell a sewer easement across their land.

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Mr. Zadell then approached the mayor and public works director for Apex in

August 2014, asking the Town Council to exercise eminent domain power to install a

sewer line across Ms. Rubin’s property. Mr. Zadell asserted that the easement was

the “only way to make a connection.”

In a March 2015 meeting, the Town Council considered and approved by 3-2

vote—over Ms. Rubin’s objection—a resolution authorizing an eminent domain

proceeding to take a forty-foot-wide sewer easement across Ms. Rubin’s property.

Prior to the Town Council meeting, Mr. Zadell executed a contract with Apex where

Mr. Zadell agreed “to pay the Town’s costs, including attorneys’ fees, of the

[c]ondemnation [a]ction[ ].” Mr. Zadell also agreed to indemnify Apex for, inter alia,

any judgments, claims, damages, or attorneys’ fees arising out of the condemnation

action. In February 2015, Mr. Zadell executed a contract to sell Riley’s Pond for a

profit of nearly $2.5 million; the sale was conditioned upon Apex securing the sewer

line easement across Ms. Rubin’s property by condemnation.

On 27 July 2015, Apex installed the underground sewer line across Ms. Rubin’s

property. The Town used a boring method to install the pipe, meaning it drilled an

underground opening for the sewer line working from the property adjacent to Ms.

Rubin’s land. The Town then slid 156 feet of eight-inch diameter sewer piping

encased in an eighteen-inch steel enclosure across Ms. Rubin’s property, eighteen feet

underground. The construction method avoided the appearance of construction

activity on Ms. Rubin’s property.

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II. Procedural History

A. Trial Court Proceedings Before Judge O’Neal

Before Apex installed the sewer line on Ms. Rubin’s property, it initiated a

direct condemnation action in Wake County Superior Court on 20 April 2015 (Direct

Condemnation Action). Following the procedure outlined in N.C.G.S. § 136-103, Apex

filed a complaint and declaration and deposited the estimated compensation of

$10,771.00 with the Clerk of Superior Court.

Ms. Rubin, through her counsel, notified Apex on 19 May 2015 of her intent to

challenge the Direct Condemnation Action on the grounds that the condemnation was

for a private purpose. For that reason, she encouraged Apex “to not commence any

construction activities until after the motion was heard . . . to mitigate any actions

caused by premature construction activities.” Apex responded by email on 22 May

2015, requesting that Ms. Rubin “quickly” file her motion and schedule a hearing

because the “Town’s project is scheduled to move forward and . . . cannot [be] put . . .

on hold for an undetermined period of time.”

On 10 June 2015, Apex contacted Ms. Rubin’s counsel again, stating that

because “the Town has heard nothing from Ms. Rubin regarding the issues . . . [Apex]

will move the construction of the project forward.” Ms. Rubin’s counsel responded

immediately stating that they were preparing a request for production of documents

necessary prior to bringing the motion. Two days later, on 12 June 2015, Apex

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notified Ms. Rubin the town “need[ed] to move forward with the project”

notwithstanding Ms. Rubin’s objection.

Ms. Rubin timely filed her answer to the complaint on 8 July 2015. Among

other things, she asserted that the North Carolina Constitution, the United States

Constitution and North Carolina statutes prohibited Apex from taking Ms. Rubin’s

land because the town was using its power of eminent domain for the financial gain

of a private developer. Ms. Rubin contended that Apex’s proposed taking was

unlawful because the taking was for a private rather than a public purpose. In her

request for relief, Ms. Rubin sought declaratory relief establishing that the “Town of

Apex does not possess the right of eminent domain as applied to the areas stated

within the Complaint” and, in the alternative, she requested a trial by jury as to just

compensation. Ms. Rubin did not request injunctive relief. Two weeks later, on 27

July 2015, Apex installed the sewer line.

Nearly one year passed before any new activity in the matter occurred. On 8

April 2016, Ms. Rubin moved for a hearing under N.C.G.S. § 136-108, during which

the trial court would address “all issues raised by the pleadings other than just

compensation.” Apex also moved for a hearing under N.C.G.S. § 136-108 on 13 July

2016. The trial court scheduled that hearing for 1 August 2016. Prior to the hearing,

Apex filed an affidavit from Mr. Timothy Donnelly, the Assistant Town Manager for

the Town of Apex, attesting that the sewer line had been installed. Mr. Donnelly

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represented that “this sewer line is part of a public project” but acknowledged that

Mr. Zadell paid for the town’s condemnation costs.

During the N.C.G.S. § 136-108 hearing, the trial court concluded that the

“paramount reason for the taking of the sewer easement [was] for a private purpose

and the public’s interest [was] merely incidental.” The trial court entered a judgment

on 18 October 2016 (Private Purpose Judgment) finding that Apex’s exercise of

eminent domain was null and void and thus dismissed the Direct Condemnation

Action.

On 28 October 2016, Apex moved for reconsideration of the Private Purpose

Judgment or, in the alternative, relief from judgment under Rule 60 of the North

Carolina Rules of Civil Procedure. In support of reconsideration, Apex largely

reiterated its position that the condemnation was for a public purpose. The trial court

denied Apex’s motion for reconsideration on 24 January 2017. Apex appealed to the

Court of Appeals on 30 January 2017.

On appeal, Ms. Rubin argued that Apex’s appeal was untimely because, under

Rule 3 of the North Carolina Rules of Appellate Procedure, Apex was required to

enter a notice of appeal within thirty days of the trial court’s 18 October 2016 order.

The Court of Appeals agreed, holding that the motion for reconsideration did not toll

the thirty-day period and dismissed the appeal. See Town of Apex v. Rubin (Apex I),

262 N.C. App. 148, 150–53 (2018). Apex petitioned this Court for discretionary

review, but this Court denied the petition.

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B. Trial Court Proceedings Before Judge Collins

With the Court of Appeals’ dismissal of the appeal, the trial court’s Private

Purpose Judgment became final and law of the case. Apex I, 262 N.C. App. at 151

(“[A] Section 108 judgment becomes a final judgment on the issues it addresses if it

is not immediately appealed . . . .”).2 Nevertheless, because the judgment’s effect was

only declaratory and Apex had already installed the sewer line, the final judgment

did not have immediate effect.

On 10 April 2019, Ms. Rubin moved under Rule 70 of the North Carolina Rules

of Civil Procedure to enforce the Private Purpose Judgment by having Apex remove

the sewer line. In her motion, Ms. Rubin identified six legal theories under which the

trial court should require Apex to remove the sewer line: (1) execution authority

under N.C.G.S. § 1-298; (2) contempt authority under N.C.G.S. § 1-302; (3)

declaratory authority under N.C.G.S. § 1-259; (4) Rule 70 of the North Carolina Rules

Civil Procedure; (5) inherent judicial authority; and (6) mandamus authority. Apex

opposed each of Ms. Rubin’s contentions, averring that Ms. Rubin waived any

injunctive relief, that the Private Purpose Judgment merely rendered the direct

condemnation claim “null and void”—“as if it had not been filed.” Her sole remedy—

in Apex’s view—was an inverse condemnation action, which is an action against a

2 Neither the Court of Appeal nor this Court considered the merits of the trial court’s

determination that Apex took the easement for a private purpose. Our decision today takes no position on whether the trial court properly decided that issue.

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government entity to recover the value of property taken without a formal exercise of

eminent domain.

Apex then took the unusual step of filing a separate action against Ms. Rubin

in 2019 seeking declaratory relief that Apex gained an easement by inverse

condemnation when it installed the sewer line (Inverse Condemnation Declaratory

Judgment Action). Apex requested a preliminary and permanent injunction to keep

Ms. Rubin “from removing or disturbing the sewer line and easement.” In this

Inverse Condemnation Declaratory Judgment Action, Apex sought a judicial

declaration that Apex had obtained an easement by inverse condemnation across Ms.

Rubin’s property when Apex installed the sewer line. Further, Apex argued that Ms.

Rubin was not entitled to compensation for the easement because the statute of

limitations had run. Three days after the filing of this action, Ms. Rubin moved to

dismiss the action on res judicata and prior pending action grounds.

The trial court exercised its authority under N.C.G.S. § 136-114 to stay all

proceedings in both cases and ordered mediation. Mediation ended in impasse.3 On

30 August 2019, Apex filed a motion for relief from the Private Purpose Judgment

3 In light of the Supreme Court of the United States’ decision in Knick v. Township of

Scott, 588 U.S. 180, 185 (2019), which eliminated the requirement to exhaust state remedies in Takings Clause claims brought under 42 U.S.C. § 1983, Ms. Rubin sought injunctive relief in federal court on 11 October 2019. See Rubin v. Town of Apex, No. 5:19-CV-449-BO, 2020 WL 1491662, at *2 (E.D.N.C. Mar. 27, 2020). That case was later dismissed under the Princess Lida abstention doctrine. Id.

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arguing that the judgment was moot because Apex acquired an easement across Ms.

Rubin’s property when it installed the sewer line.

The trial court held a hearing to address the motions in both cases jointly.

Specifically, the trial court considered Ms. Rubin’s motion to enforce the Private

Purpose Judgment, Apex’s motion for relief from the Private Purpose Judgment, and

Ms. Rubin’s motion to dismiss Apex’s Inverse Condemnation Declaratory Judgment

Action. In the action where the Private Purpose Judgment was the law of the case,

the trial court entered two orders. The first order denied Ms. Rubin’s motion to

enforce judgment by ordering Apex to remove the sewer line. The trial court

concluded that because Ms. Rubin did not originally request injunctive relief, the trial

court did not have the authority under the Private Purpose Judgment to order Apex

to remove the sewer line. In the trial court’s view, Ms. Rubin had an adequate remedy

at law: compensation for the inverse condemnation in Apex’s Inverse Condemnation

Declaratory Judgment Action.

In a separate order related to the Private Purpose Judgment, the trial court

also granted Apex’s motion for Rule 60 relief from the judgment in the 2015 Direct

Condemnation Action because Ms. Rubin did not seek an injunction before Apex

completed construction of the sewer line. The trial court concluded that Apex was

not seeking relief related to the Private Purpose Judgment; rather, Apex was seeking

“prospective application of the [j]udgment as it relate[d] to the existence of the

underground sewer pipe and corresponding inversely condemned easement.”

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Because Apex had taken the easement before the entry of the Private Purpose

Judgment, the trial court concluded that it lacked subject matter jurisdiction “to enter

the [Private Purpose] Judgment to the extent the Judgment is interpreted to

negatively affect the installed sewer pipe and corresponding easement.” Under the

trial court’s theory, the Private Purpose Judgment against the town was void as to

the installed pipe and corresponding easement. Because Apex took the easement

before the trial court determined the taking was void, Apex owned both the sewer line

and the easement. Further, the trial court invoked Wilkie v. City of Boiling Spring

Lakes, 370 N.C. 540 (2018), to conclude “that public use or purpose is not an element

of an inverse condemnation claim.” The trial court thus explained its belief that

injunctive relief was not available to Ms. Rubin and her only remedy at law was

compensation for the inverse condemnation. Ms. Rubin appealed both of these orders

to the Court of Appeals.

In a separate order in Apex’s Inverse Condemnation Declaratory Judgment

Action, the trial court also granted Apex’s requested preliminary injunction which

prohibited Ms. Rubin from disturbing the sewer line while the action was pending.

The trial court found that an injunction was necessary to preserve the status quo and

avoid injury to Apex as removal of the sewer line would interrupt sewer service to

residents of the town. Further, in the trial court’s view, Apex was likely to succeed

on the merits on an inverse condemnation theory. Ms. Rubin appealed this

interlocutory order to the Court of Appeals.

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C. Court of Appeals Proceedings

Because the cases were not consolidated, the Court of Appeals addressed the

trial court’s orders in two separate opinions. See Town of Apex v. Rubin (Apex II), 277

N.C. App. 328 (2021); Town of Apex v. Rubin (Apex III), 277 N.C. App. 357 (2021). In

Apex II, the Court of Appeals reviewed the orders in the Direct Condemnation Action

where the Private Purpose Judgment had been entered. 277 N.C. App. at 329. The

Court of Appeals held that the trial court erred when it concluded that the Private

Purpose Judgment precluded mandatory injunctive relief. Id. Further, the Court of

Appeals concluded that while mandatory injunctive relief may be available to Ms.

Rubin in an action for trespass, she was not entitled to post-judgment mandatory

injunctive relief in the 2015 Direct Condemnation Action because she did not request

injunctive relief in the pleadings. Id. The Court of Appeals thus vacated the trial

court’s orders insofar as the orders “preclude[d] the availability of mandatory

injunctive relief.” Id. The Court of Appeals also reversed the order granting Apex’s

relief from judgment. Id. But the Court of Appeals affirmed the trial court’s denial

of Ms. Rubin’s motion to enforce the original judgment by forcing Apex to remove the

sewer line. Id. at 344–48, 356.

As to Apex’s Inverse Condemnation Declaratory Judgment Action, the Court

of Appeals ruled in Apex III that res judicata barred most of Apex’s claims, including

its claim to (1) title of the sewer easement; (2) inverse condemnation as Ms. Rubin’s

sole remedy; (3) compensation being her sole form of relief; and (4) mandatory

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injunctive relief being unavailable. Apex III, 277 N.C. App. at 365–67. However, the

Court of Appeals concluded that a question remained as to what to do about the

installed sewer pipe installed on land owned in fee simple by Ms. Rubin. Id. The

Court of Appeals vacated certain findings of facts and conclusions of law in the

preliminary injunction order; however, the appeals court left the preliminary

injunction in place because Ms. Rubin had not met her burden of rebutting “the

presumption that the trial court correctly determined [Apex] was likely to succeed on

this claim.” Id. at 370–71. The Court of Appeals affirmed the trial court’s preliminary

injunction against Ms. Rubin and remanded for further proceedings. Id. at 370.

Apex then filed petitions for discretionary review with this Court in both cases.

We allowed both petitions and consolidated the cases. We also allowed Ms. Rubin’s

conditional petition for discretionary review on the issue of whether the Court of

Appeals erred “by failing to order [Apex] to stop its occupation of Ms. Rubin’s land[.]”

III. Analysis

A. Inverse Condemnation Declaratory Judgment Action

Before addressing the dispute around the easement, we must first address the

procedural issue of whether Apex was precluded from filing the 2019 Inverse

Condemnation Declaratory Judgment Action while the 2015 Direct Condemnation

Action was pending. We conclude it was.

Under the prior action pending doctrine, “pendency of a prior action between

the same parties for the same cause . . . works an abatement of a subsequent action”

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in a court with like jurisdiction. Clark v. Craven Reg’l Med. Auth., 326 N.C. 15, 20

(1990) (citing McDowell v. Blythe Bros. Co., 236 N.C. 396, 399 (1952)). Abatement

disincentivizes parties from filing a “multiplicity of actions” when the issues can be

resolved in the original case. Id. at 20 (“This is so because the court can dispose of

the entire controversy in the prior action and in consequence the subsequent action

is wholly unnecessary.”).

An action is pending “until its final determination by judgment.” Id. (quoting

McDowell, 236 N.C. 396). This Court has held that cases pending in the appellate

court may serve as a prior action pending in a subsequent action between the same

parties upon the same issues. Id. at 21. The Court of Appeals ruled that the 2015

Direct Condemnation Action was no longer pending because of the Private Purpose

Judgment. Apex III, 277 N.C. App. at 369. But a disposition is not truly “final” unless

it is “such a conclusive determination of the subject-matter that after the award,

judgment, or decision is made, nothing further remains to fix the rights and

obligations of the parties, and no further controversy or litigation can arise thereon.”

Whitworth v. Whitworth, 222 N.C. App. 771, 780 (2012) (cleaned up); see also N.C.

Dep’t of Transp. v. Laxmi Hotels of Spring Lake, Inc., 259 N.C. App. 610, 614–15

(2018) (“A judgment is final if it leaves nothing further to be done in the trial court.”

(cleaned up)).

At the conclusion of the hearing to resolve all issues related to the title of the

property, the trial court entered the Private Purpose Judgment. Generally, an order

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from a section 136-108 hearing, addressing all issues other than just compensation

in a condemnation action, is not a final judgment. See N.C.G.S. § 136-108 (2023)

(defining the scope of the hearing as addressing all issues other than damages); Dep’t

of Transp. v. Bloomsbury Ests., 386 N.C. 384, 393 (2024) (explaining that the hearing

held pursuant to N.C.G.S. § 136-108 resolves “questions related to the title of land

taken, interest in the land, proper parties, and all issues other than damages”). The

Private Purpose Judgment was not a final judgment here because it did not resolve

the hotly disputed issue of damages.

The Private Purpose Judgment would have resolved all of the issues in the

action if Apex had not installed the sewer line. However, because Apex installed the

pipe, the Private Purpose Judgment was not final for purposes of the prior pending

action doctrine because it left unresolved the question of damages, including

appropriate remedy. Our holding on this front comports with the doctrine’s core

purpose—preserving judicial economy—as it was still possible for Apex to obtain its

desired relief without filing the separate Inverse Condemnation Declaratory

Judgment Action. See Eways v. Governor’s Island, 326 N.C. 552, 560–61 (1990)

(recognizing that a case that “raises substantially the same issues between

substantially the same parties as a subsequent action” should—in the interest of

judicial economy—be abated).

Of course, not all pending actions warrant abatement of subsequently filed

actions. The test for whether the parties and causes are the same for abatement

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purposes is whether the actions are substantially similar “as to parties, subject

matter, issues involved, and relief demanded[.]” Cameron v. Cameron, 235 N.C. 82,

85 (1952). Utilizing this test, Apex’s Inverse Condemnation Declaratory Judgment

Action is substantially similar to the Direct Condemnation Action and therefore

should be abated. First, the 2015 Direct Condemnation Action and Apex’s Inverse

Condemnation Declaratory Judgment Action both involve identical parties: Ms.

Rubin and Apex. Second, both actions concern the same subject matter: the sewer

line easement across Ms. Rubin’s property. Indeed, the fact that Apex could “obtain

the same relief . . . in the first action,” Gardner v. Gardner, 294 N.C. 172, 175 n.4

(1978), supports a conclusion that Apex’s Inverse Condemnation Declaratory

Judgment Action presents the same issue being litigated in the 2015 Direct

Condemnation Action.

Lastly, the parties demand substantially similar relief in both actions:

mandatory injunctive relief regarding the continued existence or removal of the sewer

line across Ms. Rubin’s property. In its post-judgment motions for relief in the 2015

Direct Condemnation Action, Apex asked the trial court to deny Ms. Rubin any

prospective injunctive relief and order “that the sewer line and easement not be

removed from [Ms.] Rubin’s property.” Likewise, in its Inverse Condemnation

Declaratory Judgment, Apex asked for (1) declarations that Ms. Rubin could not seek

a mandatory injunction to remove the sewer line and (2) a preliminary prohibitory

injunction to prevent Ms. Rubin from removing the sewer line. As we explained in

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Clark, although declaratory and injunctive relief “are procedurally distinct,” the

remedies are sufficiently similar if “the intended result would be the same.” Clark,

326 N.C. at 22. Here, Apex seeks declaratory and injunctive relief for the same

purpose: to leave the sewer line where it is. Thus, both actions seek substantially

similar relief.

Our conclusion is consistent with a principle we endorsed in Clark: “[W]here

an action is pending between the parties, a plaintiff cannot bring another action

involving the same subject matter and the same defendant even where the first suit

demanded remedies clearly distinct from the second.” Id. at 22–23 (emphasis added);

see also State ex rel. Edmisten v. Tucker, 312 N.C. 326, 348 (1984) (“Nor may the

desire to ‘accelerate’ the judicial process displace the general rule that courts will not

entertain a declaratory judgment proceeding if there is pending . . . another action in

which the same persons are parties and in which the same issues involved in the

declaratory action may be adjudicated.”). Holding otherwise would allow parties not

only a second bite at the apple but the ability to take “bit[es] in two places at the same

time.” Vinson v. O’Berry, 209 N.C. 289, 290 (1936).

For these reasons, we conclude that our long-established prior pending action

doctrine, which strives to advance the interest of judicial economy, precludes Apex’s

second lawsuit against Ms. Rubin. Those claims should have been raised in the 2015

Direct Condemnation Action during the N.C.G.S. § 136-108 hearing. Apex’s 2019

Inverse Condemnation Declaratory Judgment Action should be dismissed. Thus, we

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vacate Apex III, 277 N.C. App. 357, and remand to the Court of Appeals with

instructions for further remand to the trial court to dismiss the action with prejudice.

B. Direct Condemnation Action

On the merits of the 2015 Direct Condemnation Action, there are two questions

left for this Court to resolve given that the Private Purpose Judgment is law of the

case.4 The first question is who has title to the sewer easement: Ms. Rubin or Apex.

The second question is what remedies are available for Apex’s intrusion onto Ms.

Rubin’s property. Ms. Rubin argues that she holds title to the property free of any

easement in favor of Apex and requests a mandatory injunction requiring Apex to

remove the sewer line from her property. In contrast, Apex argues that because it

installed the pipe before the trial court entered the Private Purpose Judgment, Apex

has title to an easement across Ms. Rubin’s land and the only remedy available to

Ms. Rubin is monetary damages.

Here, the trial court concluded that the land was taken for a private purpose

and the appeals were exhausted without a different conclusion being reached; that

decision is the law of the case. See N.C. Nat. Bank v. Va. Carolina Builders, 307 N.C.

4 This case is procedurally thorny, and unfortunately so, but we resolve the matter in

light of the equities and the duration of the constitutional violation. This matter could have been resolved in a much more efficient manner, with an eye to conserving judicial resources, had, for example: Ms. Rubin sought injunctive relief in her response to the complaint in the Direct Condemnation Action, Apex brought its claim for inverse condemnation at the N.C.G.S. § 136-108 hearing, or Ms. Rubin filed a complaint for the constitutional violation of trespass and sought mandatory injunctive relief once the Private Purpose Judgment became the law of the case. Parties should strive to resolve litigation in a manner that is as expeditious and direct as possible.

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563, 566 (1983) (recognizing that “[o]nce an appellate court has ruled on a question

that decision becomes the law of the case and governs the question not only on

remand at trial, but on a subsequent appeal of the same case”). Because of this, the

Private Purpose Judgment revested title to the easement in Ms. Rubin and Apex does

not have title to a sewer easement across Ms. Rubin’s property. Because Apex does

not have the title to a sewer easement, a trial court has inherent authority to order

monetary damages, mandatory injunctive relief, or other relief the court in its

discretion deems proper for Apex’s continuing trespass on Ms. Rubin’s property.

1. Title to the Sewer Easement

Because inverse condemnation has been invoked in this dispute, it is worth

examining the interplay between condemnation and inverse condemnation.

Generally, municipalities possess the power of eminent domain because they are a

subdivision of the State and have “the right to take private property for public use.”

Town of Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 533 (1960). This

authority is statutorily granted to various entities, including “public condemnors,”

under N.C.G.S. §§ 40A-40 to 40A-85. Apex is also authorized to invoke the

Department of Transportation’s condemnation procedures found in N.C.G.S. §§ 136-

103 to 136-121.1, to acquire land for sewer lines, among other purposes. See An Act

to Grant Additional Eminent Domain Powers to the Town of Apex for Water and

Sewer Lines and Water and Sewer Treatment Facilities, ch. 70, § 1, 1987 N.C. Sess.

Law 56. The condemnation procedure in Chapter 136 provides an avenue for the

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immediate possession of private property by the government so long as the taking is

for a public purpose. N.C.G.S. § 136-104 (2023).

In contrast, when the government—acting intentionally or unintentionally—

takes land outside of the eminent domain process, our statutes provide for a private

action against the government known as inverse condemnation. N.C.G.S. § 136-111

(2023); Wilkie, 370 N.C. at 552 (“Inverse condemnation is a term often used to

designate a cause of action against a governmental defendant to recover the value of

property which has been taken in fact by the governmental defendant, even though

no formal exercise of the power of eminent domain has been attempted by the taking

agency.” (cleaned up)). Inverse condemnation, as outlined in section 136-111,

provides a cause of action and remedy for the landowner which, if exercised, “forces

a governmental body to exercise its power of condemnation, even though it may have

no desire to do so.” Hoyle v. City of Charlotte, 276 N.C. 292, 302 (1970) (cleaned up);

see also Wilkie, 370 N.C. at 552. But, as the statute outlines, such an action is only

available if the taking is informal—“no complaint and declaration” were filed.

N.C.G.S. § 136-111; see also N.C.G.S. § 40A-51(a) (2023) (providing a remedy when

property is taken and no complaint containing a declaration of taking is filed). Thus,

if the government entity has initiated formal condemnation proceedings, no inverse

condemnation takes place or, under our statutes, could have taken place. See

N.C.G.S. § 136-111 (establishing that a person may file an action only if the

government takes an interest in the land without filing a complaint or declaration of

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taking); see also Wilkie, 370 N.C. at 552 (acknowledging that when the government

takes property outside of the eminent domain process, the property owner is due just

compensation even when the property is taken without justification).

In the 2015 Direct Condemnation Action, the trial court determined that Apex

acted outside of its eminent domain power because it took the property for a private

purpose. But Apex argues that because the determination that the taking was for a

private purpose happened after Apex had already installed the pipe, Apex

automatically gains title to the sewer easement by inverse condemnation. This

“heads I win, tails you lose” argument cannot be right. In Apex’s view, if it exercises

its eminent domain authority properly, it gains title to an easement across Ms.

Rubin’s property but if it exceeds its eminent domain authority and improvidently

trespasses before the question of the taking’s purpose has been finally answered, it

also gets title to an easement across Ms. Rubin’s property by inverse condemnation.

This Court disavowed such logic in State Highway Commission v. Thorton when it

held that the government “may not, by precipitate entry and construction, enlarge its

own powers of condemnation.” 271 N.C. 227, 237 (1967).

Here, Apex was on notice that Ms. Rubin was asserting a defense that Apex

lacked authority to condemn the land because the condemnation was for a private

purpose. Apex initiated the eminent domain process by filing the Direct

Condemnation Action on 30 April 2015 and Ms. Rubin filed a timely response on 8

July 2015 asserting the defense that the taking was not for a public purpose. Two

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weeks after Ms. Rubin responded indicating that the taking was improper, Apex

moved forward with installing the sewer line across Ms. Rubin’s land. Because Ms.

Rubin timely asserted the defense that the taking was for a private purpose, Apex

may not use the installation of the pipe to strip Ms. Rubin of her property rights. See

id. at 237 (recognizing that a premature taking of property is not a bar to the right of

the landowner to reclaim title to the property).

We identify further error in the trial court’s analysis of whether injunctive

relief was available related to the Private Purpose Judgment. The trial court in the

Private Purpose Judgment found that Ms. Rubin’s land was taken for a private

purpose and Apex’s claim to Ms. Rubin’s property by eminent domain was “null and

void.” When Ms. Rubin moved to enforce this judgment under Rule 60 of the North

Carolina Rules of Civil Procedure and have the sewer line removed from her property,

the trial court concluded that Ms. Rubin’s “failure to seek and obtain injunctive relief

prior to the construction of the sewer pipe and the Town’s acquisition of the sewer

easement by inverse condemnation renders the [j]udgment moot as to the installation

of the sewer pipe and corresponding easement.” In the trial court’s view, when the

Private Purpose Judgment found that Apex’s claim to the property by eminent

domain was “null and void,” the result was as if the 2015 Direct Condemnation Action

“was never filed.” Thus, the trial court concluded, because Apex “physically invaded

[Ms. Rubin’s] property . . . without a condemnation action,” an inverse condemnation

occurred.

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But the trial court acted under a misapprehension of the law because the effect

of the Private Purpose Judgment was to revest title in Ms. Rubin, not to erase the

fact that Apex did seek formal condemnation of the land. As this Court recognized in

Thorton, when a government entity enters land relying “upon its own opinion as to

its authority” and “that opinion was erroneous, the [landowners] are entitled to have

the [Direct Condemnation Action] dismissed, leaving them to whatever rights they

may have against those who have trespassed upon their land and propose to continue

to do so.” Id. at 240.

Further, the Private Purpose Judgment’s “null and void” language does not

operate as a time machine; it does not undo the fact that Apex filed a complaint and

then entered the land relying upon its own opinion that the taking was for a public

purpose. Ms. Rubin did not have an action, and thus remedy, for inverse

condemnation under N.C.G.S. § 136-111 because Apex filed a complaint and

declaration of taking; inverse condemnation only occurs when the government entity

takes an interest in land without filing a complaint. See N.C.G.S. § 136-111 (allowing

a remedy under the inverse condemnation statute when “land or [a] compensable

interest therein has been taken by an intentional” act of the Department and “no

complaint and declaration of taking has been filed”). As Wilkie and Hoyle proclaim,

the remedy associated with the inverse condemnation statute is only available to the

landowner—not the government entity—when “no formal exercise of the power of

eminent domain has been attempted by the taking agency.” Wilkie, 370 N.C. at 552

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(cleaned up); see also Hoyle, 276 N.C. at 302. Apex may not—after exceeding its

eminent domain power—distort the purpose of N.C.G.S. § 136-111 to take possession

of the sewer easement that our courts denied in the 2015 Direct Condemnation

Action. The effect of the Private Purpose Judgment was to revest title of the sewer

easement in the landowner, Ms. Rubin, not to erase the action and give Apex a back

door means to regain the easement.

This is not a novel view. In State Highway Commission v. Batts, 265 N.C. 346

(1965), this Court reversed a trial court’s judgment in a direct condemnation action

because the exercise of eminent domain was for a private purpose. Id. at 361. After

so resolving the major issue, the Court also concluded that the condemnor’s “cutting

of growing trees upon [the] land” was not a taking but instead an “unauthorized

trespass.” Id. The Court’s characterization of the condemnor’s action as a trespass—

the physical invasion of someone’s property—suggests that because the condemnor’s

taking was unlawful, the rights to the property revested in the landowner. See also

Thornton, 271 N.C. at 240 (recognizing a claim for trespass against a government

entity that takes land for a private purpose).

Additionally, the trial court further erred in this case in determining that

Judge O’Neal lacked jurisdiction to enter the Private Purpose Judgment because

Apex had already taken the property. A trial court is not deprived of jurisdiction in

an action under Article 9 of Chapter 136 of the General Statutes because a condemnor

completes construction before the trial court adjudicates its direct condemnation

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action. To hold otherwise would contradict long-standing precedent. See Pelham

Realty Corp. v. Bd. of Transp., 303 N.C. 424, 432–33 (1981) (ruling that a landowner

may still challenge the validity of a condemnation even after construction is finished);

Thornton, 271 N.C. at 240 (same).

In sum, we conclude that the trial court acted under a misapprehension of the

law when it ruled that Apex retained “all easement rights in the property”

notwithstanding the Private Purpose Judgment. The Private Purpose Judgment

revested title in the property to Ms. Rubin. Ms. Rubin thus owns the land free of any

easement and the sewer line constitutes a continuing trespass on the part of Apex.

2. Mandatory Injunctive Relief

With the clarification that title and right to possession of the easement

revested with Ms. Rubin, the remaining issue is whether Ms. Rubin may seek a

mandatory injunction requiring Apex to remove the sewer line. We conclude that she

may. However, we remand for a weighing of the equities by the trial court to

determine whether a mandatory injunction or money damages is the proper remedy

for this continuing trespass of the sewer pipe on Ms. Rubin’s land.

a. Issuing Injunctions Is Within a Court’s Inherent Authority

The trial court rejected Ms. Rubin’s motion to enforce the original judgment for

a host of reasons. Among them was that “the [c]ourt is not authorized to . . . order

mandatory injunctive relief that [Ms. Rubin] did not request or plead.” The trial court

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misunderstood the judiciary’s inherent authority to grant relief where a

constitutional right has been infringed upon.

Article 1, Section 19 of the North Carolina Constitution provides that “[n]o

person shall be . . . deprived of his life, liberty, or property, but by the law of the land.”

N.C. Const. art. I, § 19. This Court has long recognized that “if no statute affords an

adequate remedy for depriving an owner of private property” without just

compensation or its equivalent, then the court must fashion a remedy which “will

furnish the appropriate action for the adequate redress of such grievance.” Sale v.

State Highway & Pub. Works Comm’n, 242 N.C. 612, 618 (1955); see also Corum v.

Univ. of N.C., 330 N.C. 761, 783 (1992) (“It is the state judiciary that has the

responsibility to protect the state constitutional rights of the citizens[.]”). “[E]ntry of

a judgment is not sufficient”—nothing short of actual payment, or its equivalent,

constitutes just compensation. Sale, 242 N.C. at 618. “Once a right and a violation

have been shown, the scope of a [trial] court’s equitable powers to remedy past wrongs

is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).

An injunction is an equitable remedy well within our inherent authority. See

In re Alamance Cnty. Ct. Facilities, 329 N.C. 84, 103–04 (1991) (acknowledging that

mandatory injunctions and writs of mandamus are remedies to ensure government

officials perform constitutional and statutory duties); see also Richmond Cnty. Bd. of

Educ. v. Cowell, 254 N.C. App. 422, 426 (2017) (“[C]ourts possess the power to issue

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injunctions and extraordinary writs.”); Pelham Realty Corp., 303 N.C. at 431; cf.

Dalenko v. Peden Gen. Contractors, Inc., 197 N.C. App. 115, 127 (2009) (“As part of

its inherent authority, the trial courts of this state have the power to prohibit future

frivolous and repetitive litigation.”).

b. Whether Injunctive Relief Is Appropriate Requires Weighing the Equities

The trial court declined to invoke its inherent authority because Ms. Rubin

“did not request or plead” mandatory injunctive relief.5 However, Ms. Rubin is

entitled to some relief, be it damages or a mandatory injunction, for the continuing

trespass on her property. The trial court must consider the totality of the

circumstances when determining whether mandatory injunctive relief is appropriate,

and thus remand for that factual analysis is the appropriate next step.

A mandatory injunction is “affirmative in character” and “require[s] positive

action involving a change of existing conditions—the doing or undoing of an act.”

Roberts, 344 N.C. at 399–400 (cleaned up); see also Seaboard Air Line R.R. Co. v. Atl.

Coast Line R.R. Co., 237 N.C. 88, 94 (1953) (“[A court] may, by its mandate, compel

the undoing of those acts that have been illegally done . . . .”). In determining whether

a mandatory injunction is appropriate, we have instructed courts to balance “equities,

5 The trial court further determined that injunctive relief was unavailable to Ms. Rubin because she had an “adequate remedy at law”—an inverse condemnation claim. Of course “equitable intervention is obviated when an adequate remedy at law is available.” Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487, 491 (1992). But as we already explained, there was no cause of action was available to Ms. Rubin under section 136-111. The trial court erred here because Ms. Rubin had no other form of relief available.

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hardships, and the interests of the public and of third persons.” Roberts, 344 N.C. at

399 (recognizing that a merger does not automatically render as moot the parties

request for a mandatory injunction); see also Clark v. Asheville Contracting Co., 316

N.C. 475, 488 (1986) (cautioning the trial court when considering a mandatory

injunction on remand to “consider the relative convenience-inconvenience and the

comparative injuries to the parties” (cleaned up)). In Williams v. South & South

Rentals, Inc., 82 N.C. App. 378 (1986), the Court of Appeals expounded on this

balancing test by considering the following factors: (1) whether the party “acted in

good faith or intentionally built on the adjacent land and” (2) “whether the hardship

incurred in removing the structure is disproportionate to the harm caused by the

encroachment.” Id. at 384. At least in the case of violation of a building restriction,

this Court has recognized that a mandatory injunction cannot be avoided on the

theory that the loss caused is disproportionate to the good accomplished. See Ingle v.

Stubbins, 240 N.C. 382, 391 (1954). “Mere inconvenience and expense are not

sufficient to withhold injunctive relief.” Williams, 82 N.C. App. at 384.

Importantly, though, equitable weighing is a practice “clearly within the

province of the trial court.” Buie v. High Point Assocs. Ltd. P’ship, 119 N.C. App. 155,

161 (1995); see also Clark, 316 N.C. at 488 (remanding an injunctive relief appeal to

the trial court for a balancing of the equities). Thus, we must remand the question

of the proper remedy to the trial court for determination after it has balanced the

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equities. The wide range of remedies available to the trial court, depending on the

current and competent evidence presented to it, only confirms the need for remand.

On remand, in weighing the equities, the trial court should consider whether

Apex acted in good faith when it installed the sewer line notwithstanding Ms. Rubin’s

notice of intent to challenge. See Williams, 82 N.C. App. at 384. The trial court

should also consider the impact on the fifty homeowners that rely upon the sewer

line. The trial court is not precluded, for example, from considering whether, in

ordering different mandatory injunctive relief, Apex should install a replacement

sewer line or pumping station, then remove the offending sewer line, and pay Ms.

Rubin a reasonable rental rate for the time period when the sewer line was on her

property. Likewise, the trial court is not precluded from determining that monetary

damages are the least intrusive remedy. But the trial court should take care to

ensure that money damages do not merely give Ms. Rubin the value of the property

taken from her in 2015. Such a remedy would be what Apex would have paid had it

been successful in the 2015 Direct Condemnation Action or the 2019 Inverse

Condemnation Declaratory Judgment Action, had this taking been deemed

constitutional. As we rejected above, Apex securing the line and paying what it

wanted to pay in 2015 cannot be a meaningful remedy for a constitutional violation.

As part of the totality of the circumstances analysis, the trial court is authorized to

accept evidence on the range of appropriate remedies and damages, from what it

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would have cost to construct an alternative sewer line that did not cross Ms. Rubin’s

property to how property values have changed over the last decade.

IV. Conclusion

Apex may only exercise the power of eminent domain for a public purpose.

When the trial court determined that Apex exercised its eminent domain power for a

private purpose and that conclusion was not altered after final appeal, title to the

property revested in the private landowner. When a government entity takes private

property for a private purpose, the trial court may, as an exercise of its inherent

power, order a mandatory injunction to restore the property to its original condition

after weighing the equitable considerations applicable to devising a remedy.

Thus, in the 2015 Direct Condemnation Action, Apex II, 277 N.C. App. 328, we

affirm the Court of Appeals’ decision vacating the trial court’s order denying Ms.

Rubin’s motion to enforce the Private Purpose Judgment and declaring that the Town

took an easement by inverse condemnation, the judgment was moot, and the

judgment was void. Further, we reverse the Court of Appeals’ holding that the

judgment does not establish a right to mandatory injunctive relief and remand to the

Court of Appeals for further remand to the trial court. On remand, the trial court

should balance the equities to determine whether monetary damages or a mandatory

injunction removing the sewer line after installation of an alternate sewer line is the

appropriate remedy.

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Further, in Apex’s 2019 Inverse Condemnation Declaratory Judgment Action,

Apex III, 277 N.C. App. 357, we vacate the Court of Appeals’ decision affirming in

part and vacating in part the preliminary injunction order. We remand Apex’s 2019

Inverse Condemnation Declaratory Judgment Action to the Court of Appeals with

instruction for further remand to the trial court to dismiss the action with prejudice.

Nothing in this opinion precludes Apex from requesting a preliminary injunction in

the 2015 Direct Condemnation Action during the pendency of the trial court’s hearing

for the appropriate remedy.

AFFIRMED in part, VACATED in part, REVERSED in part, and

REMANDED.

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Newby, C.J., concurring in part and concurring in the result only in part

Chief Justice NEWBY concurring in part and concurring in the result only in

part.

It is said that “bad cases make bad law.” This saying is true both substantively

and procedurally. I am concerned about how cases such as this one will be handled

going forward, and I hope that the procedural tangle here does not create procedural

issues in the future. To be clear, this case is procedurally abnormal and should not

serve as a model for future litigants involved in takings disputes. In an ideal world,

defendant would have sought relief from plaintiff’s unlawful incursion onto her

property through a counterclaim in the direct condemnation action or her own

independently commenced action after plaintiff’s appeal was exhausted. She did not.

Given that this matter has languished in the court system for over a decade, however,

I agree with the decision to remand for further proceedings on defendant’s motion to

enforce the judgment in the direct condemnation action to determine how to

appropriately remedy plaintiff’s ongoing intrusion onto defendant’s property. I also

agree with the decision to vacate the declaratory judgment action. Although I concur

with much of the majority’s analysis, I write separately to clarify a few points where

my analysis differs from that of the majority. I respectfully concur in part and concur

in the result only in part.

As the majority opinion recounts, on 30 April 2015, plaintiff, under Chapter

136 of the General Statutes, filed a complaint against defendant to condemn a sewer

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Newby, C.J., concurring in part and concurring in the result only in part

easement across her property, and it simultaneously filed a declaration of taking and

deposited the estimated just compensation.1 On 8 July 2015, defendant answered.

She did not assert any counterclaims or seek an injunction. Instead, defendant

asserted two affirmative defenses: first, that plaintiff’s taking was unconstitutional,

and second, that she was entitled to attorney’s fees and other costs as part of any

“just compensation.” On 27 July 2015, plaintiff installed a sewer line under

defendant’s property.

The trial court held a hearing under section 136-108 on 1 August 2016,2 and

on 18 October 2016, the trial court entered a written judgment. The trial court

concluded that plaintiff’s taking was not for a public use. Accordingly, the trial court

adjudged that “[p]laintiff’s claim to . . . [d]efendant’s property by [e]minent [d]omain

is null and void,” and it dismissed plaintiff’s claim. The judgment did not expressly

command plaintiff to remove the sewer line. Plaintiff appealed the judgment, but the

Court of Appeals dismissed the appeal as untimely. Town of Apex v. Rubin (Town of

Apex I), 262 N.C. App. 148, 152–53, 821 S.E.2d 613, 616–17 (2018), disc. rev. denied,

1 Although normally set out for use by the Department of Transportation, plaintiff’s

charter permits it use Chapter 136’s procedure. An Act Repealing the Expiration of an Act Authorizing the Town of Apex to Use the Procedure and Authority of Chapter 136 of the North Carolina General Statutes in Condemnation Proceedings Concerning Public Streets and Roads, and Allowing Use for Electric Facilities, S.L. 2007-37, § 2, 2007 N.C. Sess. Laws 29, 29–30. 2 See generally N.C.G.S. § 136-108 (2023) (“After the filing of the plat, the judge, upon

motion and 10 days’ notice by either the Department of Transportation or the owner, 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 parties, title to the land, interest taken, and area taken.”).

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Newby, C.J., concurring in part and concurring in the result only in part

372 N.C. 107, 835 S.E.2d 253 (2019). Accordingly, the trial court’s judgment became

the law of the case.3

On 10 April 2019, shortly after this Court denied discretionary review in

plaintiff’s appeal, defendant moved to enforce the judgment by enjoining plaintiff to

remove the sewer line, and she alternatively petitioned for a writ of mandamus. In

support of her motion, defendant cited several grounds that she contended authorized

the trial court to issue an injunction. Pertinently, she maintained, “[The trial court]

has the power to enforce its own judgments. Such power is inherent . . . . [The trial

court] has inherent authority to enter any order to make its judgment . . . effective.”

On 30 August 2019, plaintiff moved under Rule 60 of the North Carolina Rules

of Civil Procedure for relief from the judgment. Plaintiff’s rationale was convoluted.

Plaintiff argued that its construction of the sewer line “constituted a[n] . . . inverse

condemnation” and that it had acquired title to the easement by said inverse

condemnation before the trial court dismissed the 2015 Direct Condemnation Action.

As such, plaintiff maintained that the trial court had no subject matter jurisdiction

in the direct condemnation action, that the judgment was moot, and that the

judgment was a “legal nullity” that “had no effect on the rights inversely taken.”

Plaintiff argued that defendant’s “sole remedy for an inverse taking is compensation,”

3 Like the majority, because neither the Court of Appeals nor this Court reviewed the

merits of the trial court’s determination that plaintiff took an easement for a private purpose, I express no opinion as to the correctness of the trial court’s judgment.

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Newby, C.J., concurring in part and concurring in the result only in part

and that “[t]he sole inverse condemnation statutory remedy available to [defendant]

is not dependent upon taking or using for a public purpose.”

Before the trial court ruled on these motions, plaintiff filed a new lawsuit on

13 May 2019. In its amended complaint, plaintiff sought judgments declaring

(1) . . . that [its] installation of the sewer line . . . was an inverse taking, (2) that inverse condemnation is [defendant’s] sole remedy for the installation of the sewer pipe . . . , (3) that the remedy of inverse condemnation is time barred, (4) that given [plaintiff’s] limited waiver of its defense of the statute of limitations, [defendant] is entitled to a jury trial on the issue of the amount of compensation due for the inverse taking . . . , (5) that pursuant to N.C.[G.S.] §[§] 1-259 and/or 136-114, supplemental relief be granted to order a jury trial to be held on the issue of the amount of compensation due for the inverse taking . . . , (6) that pursuant to N.C.[G.S.] §[§] 1-259 and/or 136-114, supplemental relief be granted to order the amount deposited by [plaintiff] that is being held by the Clerk of Superior Court for the benefit of [defendant] be deemed to be [plaintiff’s] deposit of its estimate of just compensation for the inverse taking . . . , (7) that the [j]udgment [in the direct condemnation action] is res judicata as to any claims by [defendant] for injunctive relief or an extraordinary writ, and/or should not be applied prospectively given the recent Supreme Court of North Carolina opinion in Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018), and (8) the doctrines of laches, economic waste, and other similar equitable doctrines bar [d]efendant from causing the removal of the sewer pipe.

(Emphasis omitted.) Plaintiff also moved for a preliminary injunction to prevent

defendant from removing or disturbing the sewer line. On 16 May 2019, defendant

moved to dismiss plaintiff’s declaratory judgment action, arguing it was barred by

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Newby, C.J., concurring in part and concurring in the result only in part

res judicata and the prior action pending doctrine.

The trial court resolved all the motions in both actions on 21 January 2020.

The trial court denied defendant’s motion to enforce the judgment and petition for

the writ of mandamus. Regarding its inherent authority to order injunctive relief, the

trial court reasoned:

8. The [c]ourt has the inherent authority to enforce its own orders. However, the [c]ourt is not authorized to and refuses to expand this [j]udgment beyond its terms, read in additional terms, and/or order mandatory injunctive relief that [d]efendant did not request or plead.

9. Regardless of the [c]ourt’s authority, the [c]ourt does not read the [j]udgment the way [d]efendant suggests and the [c]ourt does not agree the [j]udgment expressly or implicitly requires removal of the sewer line. Defendant could have requested the [c]ourt grant her injunctive relief before the sewer pipe was installed under her property, but she did not do so. The [c]ourt will not now require [plaintiff] to remove the sewer line.

Additionally, the trial court concluded defendant was limited to damages as a remedy

because when the judgment stated that plaintiff’s direct condemnation claim was

“null and void,” it transformed plaintiff’s conduct into “an inverse condemnation.”

The trial court accordingly granted plaintiff relief from the judgment pursuant to

Rule 60(b)(4) and (6), declaring that the judgment had no “prospective application as

it relates to a challenge or objection to the existence of the underground sewer pipe

and corresponding inversely condemned easement.” The trial court also denied

defendant’s motion to dismiss the declaratory judgment action and granted plaintiff’s

motion for preliminary injunction.

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Newby, C.J., concurring in part and concurring in the result only in part

Defendant appealed all four orders. In the direct condemnation action, the

Court of Appeals reversed the order granting plaintiff relief from the judgment. Town

of Apex v. Rubin (Town of Apex II), 277 N.C. App. 328, 356, 858 S.E.2d 387, 406

(2021). And although it ultimately affirmed the trial court’s order denying defendant’s

motion to enforce the judgment, the Court of Appeals vacated the portions of the trial

court’s order that declared plaintiff took the title to the easement by inverse

condemnation, the judgment was moot, and the judgment was void. Id. The Court of

Appeals opined that defendant could separately pursue a trespass action against

plaintiff and seek injunctive relief there. Id. at 355, 858 S.E.2d at 405. In the

declaratory judgment action, the Court of Appeals applied res judicata and reversed

the trial court’s denial of defendant’s motion to dismiss claims (1) through (7). Town

of Apex v. Rubin (Town of Apex III), 277 N.C. App. 357, 371, 858 S.E.2d 364, 374

(2021). As to claim (8) concerning equitable doctrines, however, the Court of Appeals

held it was not barred because it was not resolved by either the judgment or the Court

of Appeals’ opinion in Town of Apex II. Town of Apex III, 277 N.C. App. at 368, 858

S.E.2d at 373. It also held the prior action pending doctrine did not apply. Id. at 369,

858 S.E.2d at 373–74. Regarding the preliminary injunction, the Court of Appeals

held defendant did not carry her burden to show it was improper and affirmed. Id. at

370–71, 858 S.E.2d at 374. Plaintiff and defendant cross-filed petitions for

discretionary review, and this Court allowed both parties’ petitions.

As one can see from this relatively sparse overview of the history of this case,

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Newby, C.J., concurring in part and concurring in the result only in part

it is procedurally complex. But at bottom, there are only a few core questions

necessary to the resolution of this appeal: first, whether the trial court erred when it

denied defendant’s motion to enforce the judgment, and second, whether the trial

court erred when it denied defendant’s motion to dismiss the declaratory judgment

action.4

Questions of law are reviewed de novo. Slattery v. Appy City, LLC, 385 N.C.

726, 729, 898 S.E.2d 700, 704 (2024). Matters committed to the trial court’s discretion

are reviewed for abuse of discretion. See Sisk v. Transylvania Cmty. Hosp., Inc., 364

N.C. 172, 179, 695 S.E.2d 429, 434 (2010). An error of law constitutes an abuse of

discretion. Slattery, 385 N.C. at 729, 898 S.E.2d at 704.

Looking first to the motion to enforce the judgment, the majority accurately

explains the many ways that the trial court misunderstood the law of takings, largely

parroting the misstatements of law advanced by plaintiff. And in determining

whether the trial court abused its discretion when it denied defendant’s motion to

enforce the judgment, these errors certainly cast doubt as to whether the trial court

was soundly exercising its discretion. Should any doubt remain, however, the

question is put to rest by the trial court’s decision to not invoke its inherent authority

in this case. See Crist v. Moffatt, 326 N.C. 326, 331–32, 389 S.E.2d 41, 44 (1990)

4 Notably, plaintiff did not make any arguments regarding the Court of Appeals’ decision to reverse the trial court’s order granting plaintiff relief from the judgment. Accordingly, that issue has been abandoned.

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Newby, C.J., concurring in part and concurring in the result only in part

(reviewing the trial court’s invocation of its inherent authority for abuse of

discretion).

The state constitution generally vests the judicial power in the General Court

of Justice. N.C. Const. art. IV, § 1. Courts inherently may “ ‘do all things that are

reasonably necessary for the proper administration of justice[ ]’ . . . when

constitutional provisions, statutes, or court rules fail to supply answers to problems

or when courts find themselves compelled to provide solutions that enable the

litigative process to proceed smoothly.” State v. Buckner, 351 N.C. 401, 411, 527

S.E.2d 307, 313 (2000) (quoting In re Alamance Cnty. Ct. Facilities, 329 N.C. 84, 94,

405 S.E.2d 125, 129 (1991)). Although a court may not use its inherent power to

increase its jurisdiction, State v. Gravette, 327 N.C. 114, 124, 393 S.E.2d 865, 871

(1990), trial courts retain jurisdiction after judgment to enforce compliance, see

Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 674, 360 S.E.2d 772, 776 (1987).

The procedural posture of this case was and is unique. After the trial court

dismissed plaintiff’s direct condemnation action and plaintiff’s appeal was

exhausted, defendant should have commenced her own trespass action against

plaintiff to remedy plaintiff’s ongoing incursion onto her property. See State Highway

Comm’n v. Thornton, 271 N.C. 227, 240, 156 S.E.2d 248, 258 (1967); McDowell v. City

of Asheville, 112 N.C. 747, 750, 17 S.E. 537, 538 (1893) (agreeing that municipalities

that exceed their eminent domain power “may be treated as a trespasser and sued in

ejectment”). Instead, defendant opted to pursue injunctive relief through a motion to

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Newby, C.J., concurring in part and concurring in the result only in part

enforce the judgment. At the time the trial court considered the motion, the case had

already been lingering for nearly five years, and the law of the case was that the

taking was unconstitutional because it was for a private purpose. And today, the case

has languished for nearly a decade, and the law of the case remains the same. Given

this unique procedural posture and the need for swift resolution of this controversy,

the trial court—whether it recognized it or not—“f[ound] [it]se[lf] compelled to

provide solutions that [would have] enable[d] the litigative process to proceed

smoothly.” Buckner, 351 N.C. at 411, 527 S.E.2d at 313. For this reason, it appears

that it was an abuse of discretion for the trial court to not invoke its inherent

authority and decide how to remedy plaintiff’s ongoing incursion onto defendant’s

property, including through injunctive relief.5 I therefore concur in the decision to

5 I concur with the majority that whatever remedy the trial court eventually orders,

the trial court must “take care to ensure that money damages do not merely give [defendant] the value of the property taken from her in 2015.” After all, the state constitution guarantees that “[n]o person shall be . . . in any manner deprived of his . . . property, but by the law of the land.” N.C. Const. art. I, § 19. The “law of the land” requires the government to justify a taking of private property with a public use/benefit and just compensation. E.g., Johnston v. Rankin, 70 N.C. 550, 555 (1874). Thus, the government may never take for a non-public use/benefit—even upon payment of just compensation. Thornton, 271 N.C. at 241, 156 S.E.2d at 259 (“[The land] is [the landowner’s] and he may not be compelled to accept its value in lieu of it unless it is taken from him for a public use.”). The United States Constitution provides similar protections. See U.S. Const. amends. V, XIV. In other words, “[t]o take [a landowner’s] property without his consent for a non-public use, even though he be paid its full value, is a violation of . . . the [state] [c]onstitution . . . and . . . the [Federal] Constitution . . . .” Thornton, 271 N.C. at 241, 156 S.E.2d at 259. The law of the case here is that plaintiff took the easement for a private purpose, so to award defendant only the value of the easement in 2015 would require her to accept just compensation for a private taking—an outcome that would render the public use requirement a nullity and is violative of both the Federal Constitution and the state constitution and

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Newby, C.J., concurring in part and concurring in the result only in part

affirm Town of Apex II in part and reverse it in part and to remand for further

proceedings for further resolution of defendant’s motion to enforce the judgment.

Turning to the declaratory judgment action, defendant argues that the Court

of Appeals erred when it did not dismiss the entirety of the 2019 declaratory judgment

action. She argues that plaintiff’s second suit was foreclosed by res judicata and the

prior action pending doctrine. The majority opinion resolves this issue by applying

the prior action pending doctrine to vacate Town of Apex III and remand with

instructions to dismiss the declaratory judgment action. Because this Court should

instead rely on res judicata and collateral estoppel, I respectfully concur in the result

only as to this portion of the majority’s opinion.

Under the prior action pending doctrine, “[t]he pendency of a prior action

between the same parties for the same cause in a state court of competent jurisdiction

works an abatement of a subsequent action either in the same court or in another

court of the state having like jurisdiction.” Clark v. Craven Reg’l Med. Auth., 326 N.C.

15, 20, 387 S.E.2d 168, 171 (1990). “[A] prior action is pending until its determination

by final judgment,” id., but “a prior action which is pending in the appellate division

may serve as a prior action pending for the purpose of basing a judgment of abatement

in a subsequent action between the same parties upon the same issues,” id. at 21, 387

S.E.2d at 172.

therefore unavailable as a remedy. See Shore v. Edmisten, 290 N.C. 628, 633, 227 S.E.2d 553, 558 (1976) (stating a court cannot order remedies that are unconstitutional).

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Newby, C.J., concurring in part and concurring in the result only in part

In 2016, the trial court entered a judgment in the direct condemnation action

dismissing plaintiff’s claim. Defendant did not advance any counterclaims in her

answer. As such, the only “claim for relief” in the direct condemnation action was

plaintiff’s direct condemnation claim. When the trial court dismissed that claim, it

was a final judgment. And when the Court of Appeals dismissed plaintiff’s appeal as

untimely and this Court denied discretionary review, the direct condemnation action

was concluded—i.e., it was no longer pending.

The majority nevertheless applies the prior action pending doctrine because

the issue of defendant’s remedy was not resolved by the final judgment. This

reasoning overlooks that in a direct condemnation action, when a government entity’s

proposed taking is invalidated, a defendant’s remedy is to have the direct

condemnation claim dismissed (unless she brought a counterclaim or sought a

mandatory injunction to remove the government entity from her property). See

Thornton, 271 N.C. at 236–41, 156 S.E.2d at 255–59. After dismissal of the direct

condemnation action, a defendant may pursue further relief in her own action.

Indeed, in State Highway Commission v. Thornton, this Court stated:

The Commission [(i.e., the predecessor to the Department of Transportation)] entered upon the land in reliance upon its own opinion as to its authority. If that opinion was correct, it entered lawfully and these proceedings cannot be dismissed, the defendants’ only remedy being a determination of the reasonable compensation to be paid. If that opinion was erroneous, the defendants are entitled to have this proceeding dismissed, leaving them to whatever rights they may have against those who have trespassed upon their land and propose to continue to do so.

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Newby, C.J., concurring in part and concurring in the result only in part

271 N.C. at 240, 156 S.E.2d at 258 (emphasis added). Thus, when the trial court

dismissed plaintiff’s direct condemnation claim, defendant had obtained her remedy

in that action. At bottom, the direct condemnation action was concluded, rendering

the prior action pending doctrine inapplicable.

I nevertheless concur in the decision to dismiss the 2019 declaratory judgment

action because it was barred by the doctrines of res judicata and collateral estoppel.

Under the doctrine of res judicata, which is also known as “claim preclusion,” “a final

judgment on the merits in one action precludes a second suit based on the same cause

of action between the same parties or their privies.” Whitacre P’ship v. Biosignia, Inc.,

358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). “The doctrine prevents the relitigation of

‘all matters . . . that were or should have been adjudicated in the prior action.’ ” Id.

(quoting Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 412, 428, 349 S.E.2d 552,

556 (1986)). The essential elements of res judicata are (1) a final judgment on the

merits in the previous suit, (2) an identical cause of action, and (3) identical parties

(including their privies). State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413–14, 474

S.E.2d 127, 128 (1996). Res judicata may not be avoided by shifting legal theories or

asserting a new or different ground for relief. Rodgers Builders, Inc. v. McQueen, 76

N.C. App. 16, 30, 331 S.E.2d 726, 735 (1985), disc. rev. denied, 315 N.C. 590, 341

S.E.2d 29 (1986).

Res judicata works in tandem with its sister doctrine: collateral estoppel. See

Whitacre P’ship, 358 N.C. at 15, 591 S.E.2d at 880. Under this doctrine, which is also

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Newby, C.J., concurring in part and concurring in the result only in part

known as “issue preclusion,” “the determination of an issue in a prior judicial or

administrative proceeding precludes the relitigation of that issue in a later action,

provided the party against whom the estoppel is asserted enjoyed a full and fair

opportunity to litigate that issue in the earlier proceeding.” Id. The essential elements

of collateral estoppel are (1) a final judgment on the merits in a previous suit; (2)

identical issues involved; (3) the issue was actually and necessarily litigated in the

prior suit and necessary to the judgment; and (4) the issue was actually determined.

State ex rel. Tucker, 344 N.C. at 414, 474 S.E.2d at 128–29.

“Whereas res judicata estops a party or its privy from bringing a subsequent

action based on the ‘same claim’ as that litigated in an earlier action, collateral

estoppel precludes the subsequent adjudication of a previously determined issue,

even if the subsequent action is based on an entirely different claim.” Whitacre P’ship,

358 N.C. at 15, 591 S.E.2d at 880. “The two doctrines are complementary in that each

may apply in situations where the other would not and both advance the twin policy

goals of ‘protecting litigants from the burden of relitigating previously decided

matters and promoting judicial economy by preventing needless litigation.’ ” Id.

(quoting Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)).

In its 2019 action, plaintiff sought eight declarations. In its first claim, plaintiff

sought declaratory judgment “that the installation of the sewer line . . . was an

inverse taking.” Through this claim, plaintiff seeks to relitigate its taking of the sewer

easement. Although it tried to cloud its claim by rebranding it an “inverse taking,” as

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Newby, C.J., concurring in part and concurring in the result only in part

the majority explains, inverse condemnation and direct condemnation are two sides

of the same coin; the principal difference is who initiates the claim. Plaintiff cannot

avoid res judicata by changing its legal theory. Moreover, the validity of plaintiff’s

taking of the sewer easement was actually and necessarily determined in the direct

condemnation action, implicating collateral estoppel as well.

Plaintiff also sought declaratory judgments that “inverse condemnation is

[defendant’s] sole remedy for the installation of the sewer pipe of her property” and

that “the [j]udgment [in the direct condemnation action] is res judicata as to any

claims by [defendant] for injunctive relief or an extraordinary writ, and/or should not

be applied prospectively given the recent Supreme Court of North Carolina opinion

in Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).”

(Emphasis omitted.) These questions were presented by plaintiff’s motion for relief

from judgment in the direct condemnation action and are resolved today by this

Court. Accordingly, these issues are also barred from relitigation in the declaratory

judgment action.

Finally, plaintiff requested a host of miscellaneous declaratory judgments:

“that the remedy of inverse condemnation is time barred,” “that . . . [defendant] is

entitled to a jury trial on the issue of the amount of compensation due for the inverse

taking,” “that . . . supplemental relief be granted to order a jury trial to be held on the

issue of the amount of compensation due for the inverse taking,” “that . . .

supplemental relief be granted to order the amount deposited by [plaintiff] that is

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Newby, C.J., concurring in part and concurring in the result only in part

being held by the Clerk of Superior Court for the benefit of [defendant] be deemed to

be [plaintiff’s] deposit of its estimate of just compensation for the inverse taking,” and

“the doctrines of laches, economic waste, and other similar equitable doctrines bar

[d]efendant from causing the removal of the sewer pipe.” These requests presuppose

that inverse condemnation is the only recourse available to defendant to remedy

plaintiff’s conduct; indeed, they are part and parcel of plaintiff’s attempt to limit

defendant to compensation pursuant to an inverse condemnation claim. Accordingly,

these requests either were or should have been resolved in the direct condemnation

action—or they will be upon remand for further resolution of the motion to enforce

the judgment. I therefore concur in the decision to vacate Town of Apex III and

remand with instructions to dismiss the declaratory judgment action.

For these reasons, I respectfully concur in part and concur in the result only in

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