DOT v Williams, 168 NC App 728 (03-1446) 03/01/2005

Appeal by defendants from order entered 12 August 2003 by Judge Wiley F. Bowen in Lee County Superior Court. Heard in the Court of Appeals 16 June 2004.

    Attorney General, Roy Cooper, by Assistant Attorney General Spurgeon Fields, III for plaintiff-appellee.

    Stam, Fordham & Danchi, P.A., by Henry C. Fordham, Jr. for     defendants-appellants.

STEELMAN, Judge.

    In October of 1990 and January of 1991 defendants purchased two abutting tracts of land totaling approximately 250 acres in Lee County. Defendants subsequently took some preliminary steps towards subdividing the property. In March of 1997 defendants were made aware that the Department of Transportation intended to condemn a large portion of their property for a proposed bypass. On 9 February 1999 the Department of Transportation recorded its notice of adoption of transportation corridor official map,pursuant to N.C. Gen. Stat. § 136-44.50 (2003), and subsequently initiated this action against defendants pursuant to Chapter 136 of the North Carolina General Statutes.
    Defendants filed a motion for hearing pursuant to N.C. Gen. Stat. § 136-108 (2003) to determine issues other than damages, including whether defendants' property represented a single tract or an accomplished subdivision. On 12 August 2003 the trial court entered its order concluding defendants could not present their property to the jury as an accomplished subdivision. From this order defendants appeal.
    In defendants' only argument, encompassing numerous assignments of error, they contend the trial court erred in denying their request that the takings map show a completed subdivision.
    This appeal is interlocutory. DOT v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). The dispositive issue, which we address sua sponte, is whether defendant's appeal must be dismissed as an improper interlocutory appeal. We hold that it must.
        In general, a party may not seek immediate appeal of an interlocutory order. A party may appeal an interlocutory order under two circumstances. First, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. Second, a party may appeal an interlocutory order that “affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.”

Rowe, 351 N.C. at 174-75, 521 S.E.2d at 709. Defendants argue that the ruling of the trial court concluding the property in question was not a completed subdivision affects a substantial right. InRowe, the North Carolina Department of Transportation condemned a portion of the defendants' land, leaving defendants with four remaining parcels of land divided by condemned right-of-ways. One of the issues presented was whether the land remaining to defendants after the condemnation was one unified tract or four separate tracts. The Rowe Court held:
        defendants here are the undisputed owners of the land DOT is seeking to condemn. Defendants contest only the unification of the four remaining tracts, not what parcel of land is being taken or to whom that land belongs. Thus, we hold that the trial court's interlocutory order does not affect any substantial right of these defendants. To the extent that Nuckles [271 N.C. 1, 155 S.E.2d 772 (1967)] has been expanded to other issues arising from condemnation hearings, we now limit that holding to questions of title and area taken.

Rowe, 351 N.C. at 176, 521 S.E.2d at 709. In the instant case, like in Rowe, it is undisputed that defendants own the property in question. They contest only the trial court's ruling that there was no completed subdivision, not “what parcel of land is being taken or to whom that land belongs.” The issue of whether there is a completed subdivision of the land concerns the nature of the property taken, not the area. “Inasmuch as the parties' substantial rights are unaffected by the trial court's order, the instant appeal is improper and must be dismissed.” DOT v. Stagecoach Vill., __ N.C. App. __, __, 601 S.E.2d 279, 281 (2004).
    DISMISSED.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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