Appeal by defendants from orders entered 13 March 2006 by
Judge Edwin G. Wilson, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 19 March 2007.
Winston-Salem City Attorney Ron Seeber, by Assistant City
Attorney Anthony J. Baker, for plaintiff-appellee.
Max D. Ballinger for defendants-appellants.
The City of Winston-Salem, North Carolina filed two eminent
domain actions and declarations of taking in which the City sought
to take a permanent sewer easement and a temporary construction
easement running across real property owned by defendants in COA06-
1015 and COA06-1161. As the issues presented in the appeals from
the trial court's order in each eminent domain action involve
common questions of law, we have consolidated the appeals for
purposes of decision.
Following the filing of the City's complaints, defendants were
entitled to an evidentiary hearing pursuant to N.C. Gen. Stat. §
40A-47 (2005) on all issues placed in controversy by the pleadings
other than the amount of just compensation. Because the pleadings
in this case presented a dispute as to the identity of the property
affected by the City's taking, defendants were entitled to an
evidentiary hearing on that issue. We, therefore, hold that the
trial court erred by declining to conduct an evidentiary hearing
and reverse and remand for further proceedings in accordance with
These actions primarily revolve around an approximately 75
acre parcel of farmland inherited by all of the Slate children, as
well as a smaller adjoining parcel solely owned by defendantsDouglas and Shirley Slate. The City, intending to construct a
sewer line, filed two complaints in Forsyth County Superior Court
on 2 March 2004, declaring eminent domain takings of a temporary
construction easement and a permanent sewer line easement across
both a portion of the inherited farmland and the parcel solely
owned by Douglas and Shirley Slate.
The first complaint (04 CVS 1426 in the trial court and COA06-
1161 on appeal) was directed at the solely-owned parcel and named
only Douglas and Shirley Slate as defendants (the "Douglas Slate
action"). The second complaint (04 CVS 1430 in the trial court and
COA06-1015 on appeal) related to the farmland and named as
defendants Douglas and Shirley Slate, Gary and Denice Slate, Rick
and Pamela Slate Kennedy, Vicky and Wilson Newsome, Beverly and
Phil Shelnut, Andrew and Louise Slate, Jeffery and Becky Slate,
John and Tammy Slate, Rex and Gayle Slate, and Administrator R.
Kenneth Babb (the "Slate Family action"). Defendants filed answers
to the City's complaints on 13 July 2004.
On 22 September 2005, defendants' counsel, Max D. Ballinger,
moved to withdraw as counsel for certain defendants in the Slate
Family action. The motion claimed that, prior to the filing of the
City's complaints, defendants "had reached an agreement" as to how
they would divide the approximately 75 acres they had inherited
from their parents' estate. The motion explained that, under this
agreement (the "Family Settlement"), only the property allocated to
Gary and Denise Slate, Douglas and Shirley Slate, and Rick and
Pamela Slate Kennedy would be affected by the City's taking. Mr.Ballinger asserted that he needed to withdraw as attorney for the
remaining defendants in the Slate Family action because they no
longer had any interest in the action, and continued representation
of both the interested defendants and the purportedly disinterested
defendants created a conflict of interest. At this point, no deeds
had yet been recorded reflecting the purported property
distribution resulting from the Family Settlement.
The following day, defendants filed a second motion in the
Slate Family action, requesting three separate jury determinations
as to the damages caused by the City's taking with respect to Gary
and Denise Slate, Douglas and Shirley Slate, and Rick and Pamela
Slate Kennedy. According to the motion, because Gary and Denise
Slate and Douglas and Shirley Slate already owned property
adjoining the property distributed to them in the Family
Settlement, the City's taking should be valued for each of them
separately based upon the effect of the taking on the total
property owned by each of them _ i.e., their portion of the
farmland plus any adjoining property.
On 10 October 2005, in response to a motion by defendants
Vicki and Wilson Newsome, Jill and Phil Shelnut, Andrew and Louise
Slate, John and Tammy Slate, and Rex and Gayle Slate, Judge Ben F.
Tennille entered an order dismissing those defendants from the
Slate Family action on the grounds that each of those defendants
had, under the Family Settlement, "released and waived any and all
rights to any sums received" in the eminent domain proceedings. As
a result of that order, only Gary and Denise Slate, Douglas andShirley Slate, and Rick and Pamela Slate Kennedy remained as
defendants in the Slate Family action.
In a subsequent order filed on 9 November 2005, Judge Tennille
concluded that Mr. Ballinger's continuing representation of the
remaining Slate family defendants did not pose a conflict of
interest. With respect to defendants' motion to submit three
issues to the jury, Judge Tennille "defer[red] that issue to the
The City, pursuant to N.C. Gen. Stat. § 40A-47, timely
calendared a 27 February 2006 hearing to determine all issues other
than damages in both the Slate Family action and the Douglas Slate
action. Four days before the scheduled hearing date, on 23
February 2006, defendants in the Slate Family action filed a motion
to amend their answer, as well as a notice of hearing asking that
the motion to amend be heard on 27 February 2006.
At the opening of the hearing, which in fact began on 28
February 2006, the trial court inquired of counsel whether "this
hearing [is] one to be determined on the pleadings[.]" The City
argued that the present case should be resolved on the pleadings
because the admissions and denials in defendants' answers failed to
give rise to any disputed issues. The trial court then declined to
conduct an evidentiary hearing and sustained the City's objections
to defendants' attempted submission of various exhibits,
affidavits, and testimony. In addition, after concluding that the
motion to amend had not been filed the required number of daysbefore the hearing, the trial court declined to rule on the motion
at that hearing.
On 13 March 2006, the trial court entered orders in both
actions, concluding, among other things, that the City had
accurately described the property to be taken in its complaints,
that the City and defendants were the only parties with any
interest in the land taken, and that the only remaining issue to be
determined was that of just compensation. With respect to the
Slate Family action, the trial court also concluded that the
property at issue had not been subdivided among defendants before
the date of the taking and that Judge Tennille's order dismissing
the other Slate Family action defendants had not affected their
ownership of the property, but, rather, had merely released them
from receiving any portion of the just compensation. Finally, the
trial court denied defendants' motion in the Slate Family action to
submit separate issues to the jury. Defendants have appealed to
 We first address the interlocutory nature of defendants'
appeals. Because the trial court's order left the issue of just
compensation still to be resolved, it is an interlocutory order.
See Concrete Mach. Co. v. City of Hickory
, 134 N.C. App. 91, 96,
517 S.E.2d 155, 158 (1999). Generally, there is no right to appeal
from an interlocutory order. Jeffreys v. Raleigh Oaks Joint
, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).
Nevertheless, this Court has held on multiple occasions that ordersunder N.C. Gen. Stat. § 40A-47 are immediately appealable as
affecting a substantial right. See, e.g.
, Piedmont Triad Reg'l
Water Auth. v. Unger
, 154 N.C. App. 589, 591, 572 S.E.2d 832, 834
(2002) (trial court's determination under N.C. Gen. Stat. § 40A-47
"affect[ed] a substantial right"), disc. review denied
, 357 N.C.
165, 580 S.E.2d 695 (2003). Defendants' appeals are, therefore,
properly before the Court.
 We turn first to defendants' argument in the Slate Family
action that the trial court erred in declining to rule on their
motion to amend their answer. The trial court concluded that the
motion had not been filed a sufficient number of days prior to the
28 February 2006 hearing to provide the required notice to the
Rule 6(d) of the Rules of Civil Procedure specifies: "A
written motion . . . and notice of the hearing thereof shall be
served not later than five days before the time specified for the
hearing . . . ." In computing any period of time under the Rules
of Civil Procedure, "[w]hen the period of time prescribed or
allowed is less than seven days, intermediate Saturdays, Sundays,
and holidays shall be excluded in the computation." N.C.R. Civ. P.
6(a). On Thursday, 23 February 2006, defense counsel served
defendants' motion to amend their answer on the City and noticed a
hearing for the 27 February 2006 court session. Under Rule 6(a),
the City had only three days notice of the motion to amend as of
Tuesday, 28 February 2006, the actual day of the hearing. Thetrial court thus properly concluded that defendants had failed to
file their motion in a timely fashion prior to the hearing at which
they wished to be heard and did not err in declining to consider
their motion. See FNB Southeast v. Lane
, 160 N.C. App. 535, 537-
38, 586 S.E.2d 530, 532 (2003) (trial court did not abuse its
discretion in refusing to hear defendants' motion to amend answer
when motion was filed only two days prior to hearing), disc. review
, 358 N.C. 153, 592 S.E.2d 558 (2004).
Defendants nevertheless argue that the trial court in fact
surreptitiously denied their motion by stating in its written
orders that "[o]ther than those issues ruled on [in the order], all
issues or claims alleged by the parties in their respective
pleadings, or otherwise, have been resolved or are deemed to have
been waived by the parties." We do not agree with defendants'
interpretation of the trial court's order. At the hearing, the
trial court specifically stated that it was "not allowing or
denying the amendment," that the motion to amend was simply "not
before the Court," and that the trial court's decision not to rule
on the motion did not "mean that some judge isn't going to hear the
motion to amend at a later date once it is filed and properly
Consequently, the appealed orders do not preclude defendants
in the Slate Family action from having their motion to amend heard
on another hearing date. We express no opinion on the merits of
the motion, including the City's contention that defendants delayed
too long in filing the motion to amend.
 We turn next to defendants' argument that N.C. Gen. Stat.
§ 40A-47 required the trial court to resolve not merely any matters
raised by the pleadings, but, rather, "all matters at issue"
between the parties. (Emphasis omitted.) Notably, as defendants
admit in their brief, "they have no case to support [their]
N.C.R. App. P. 28(b)(6) ("Assignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority cited
, will be taken as
abandoned." (emphasis added)).
N.C. Gen. Stat. § 40A-47 provides:
The judge, upon motion and 10 days'
notice by either the condemnor or the owner,
shall, either in or out of session, hear and
determine any and all issues raised by the
pleadings other than the issue of
, including, but not limited to,
the condemnor's authority to take, questions
of necessary and proper parties, title to the
land, interest taken, and area taken.
(Emphasis added.) It is well settled that the meaning of any
statute is controlled by the intent of the legislature and that
this intent is first ascertained from the plain language of the
statute. Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co.
N.C. 651, 656, 403 S.E.2d 291, 294 (1991). We conclude that the
plain language of N.C. Gen. Stat. § 40A-47 requires the trial court
to resolve only issues raised by the pleadings, and, as a result,
we reject this argument.
 We turn now to defendants' argument that the trial court
erred by refusing to conduct an evidentiary hearing. This Courthas previously characterized hearings under N.C. Gen. Stat. § 40A-
47 as "evidentiary," Bd. of Educ. of Hickory Admin. Sch. Unit v.
, 120 N.C. App. 566, 568, 463 S.E.2d 277, 279 (1995), disc.
review improvidently allowed
, 343 N.C. 509, 471 S.E.2d 63 (1996),
and has routinely upheld decisions under N.C. Gen. Stat. § 40A-47
in which the trial court admitted evidence during the hearing, see,
, Frances L. Austin Family Ltd. P'ship v. City of High Point
177 N.C. App. 753, 755, 630 S.E.2d 37, 39 (trial court "reviewed
depositions, pleadings, exhibits, and other materials"), disc.
, 360 N.C. 575, 635 S.E.2d 594 (2006); Unger
, 154 N.C.
App. at 591, 572 S.E.2d at 834 (trial court accepted expert
In the present case, the trial court refused to admit any of
defendants' evidence on the ground that, under N.C. Gen. Stat. §
40A-47, no issues were "raised by the pleadings." In challenging
this decision, defendants must demonstrate both that there were
issues raised by the pleadings and that the failure to admit their
evidence to resolve those issues was prejudicial. Blankenship v.
Town & Country Ford, Inc.
, 174 N.C. App. 764, 769, 622 S.E.2d 638,
642 (2005). See also
N.C.R. Civ. P. 61 ("No error in either the
admission or exclusion of evidence . . . is ground for . . .
disturbing a judgment or order, unless refusal to take such action
amounts to the denial of a substantial right.").
On appeal, defendants point to three issues that they claim
were raised by the pleadings. First, defendants in the Slate
Family action argue that the pleadings created a dispute over theownership of the areas being taken by the City. A complaint
exercising eminent domain by taking property must include "[t]he
names and addresses of those persons who the condemnor is informed
and believes may be or, claim to be, owners of the property . . .
." N.C. Gen. Stat. § 40A-41(4) (2005). Additionally, N.C. Gen.
Stat. § 40A-47 specifically provides that, if raised by the
pleadings, the "title to the land" is among the issues the trial
court is to determine at the hearing. See also State v. Forehand
67 N.C. App. 148, 153, 312 S.E.2d 247, 250 ("A determination of
ownership of the area affected
is a prerequisite to a determination
of just compensation for the area taken." (emphasis added)), disc.
, 311 N.C. 307, 317 S.E.2d 904 (1984).
The pleadings in the Slate Family action, however, fail to
give rise to a dispute as to the ownership of the property. The
City's complaint in the Slate Family action states: "The names and
addresses of those persons whom the Plaintiff is informed and
believes may be or claim to be the owners of the property, so far
as the same can be ascertained, are set forth in Exhibit B. Said
persons are under no legal disability except as stated in Exhibit
B, attached hereto and made a part hereof." Defendants' answer to
that allegation states simply: "Admitted." Defendants then further
state that "[t]heir interests in the property at issue are that
they are heirs of the Ralph and Dora Slate estate, and are the
beneficiaries of interests in the property at issue." Accordingly,
based on the pleadings, no issue exists as to the ownership of the
property being taken by the City. Second, defendants in both actions argue that the pleadings
create a dispute as to the "area taken." The City's complaints in
the Slate Family action and the Douglas Slate action both state
that "the area taken" is "described in said Exhibit A, attached
hereto and made a part hereof." Defendants' answer in each case
states in response: "It is admitted that Exhibit A accurately
describes the area taken and the alleged interest taken." Again,
based on the pleadings, no dispute exists as to the "area taken."
Defendants nonetheless argue that the plats filed by the City
_ long after the filing of the pleadings _ contain errors and that
those errors create a dispute as to the areas taken. According to
defendants, the trial court, therefore, erred by excluding the
testimony of their land surveyor, who would testify as to the
errors on the City's plats. N.C. Gen. Stat. § 40A-45(c) (2005)
governs the filing of plats:
The condemnor, within 90 days from the receipt
of the answer shall file in the cause a plat
of the property taken and such additional area
as may be necessary to properly determine the
compensation, and a copy thereof shall be
mailed to the parties or their attorney;
provided, however, the condemnor shall not be
required to file a map or plat in less than
six months from the date of the filing of the
As plats are not to be filed until after the pleadings are closed
and, in any event, no earlier than six months after the initiation
of the action, any dispute pertaining to them was not properly
before the trial court in a hearing under N.C. Gen. Stat. § 40A-47.
Finally, defendants in both actions contend that the pleadings
created a dispute as to whether the City's complaints accuratelydescribed the land "affected" by the taking. A complaint
exercising eminent domain by taking property must describe any
"land affected by the taking." N.C. Gen. Stat. § 40A-41(2).
Defendants' answers both denied that the City had accurately
described the lands affected, and, accordingly, this issue was
raised by the pleadings. See also Forehand
, 67 N.C. App. at 153,
312 S.E.2d at 250 (noting, in statutorily similar context of
condemnation by Department of Transportation, that "[o]ne issue
raised by the pleadings is the area affected by the taking").
The City, however, contends that the bare denial in
defendants' answer was not enough to give rise to a dispute. They
argue that defendants were required to set forth their contentions
as to the identity of the property affected in order to preserve
the issue for hearing. The City has, however, cited no authority
for this proposition. Moreover, under N.C. Gen. Stat. § 40A-41(2),
it is the public condemnor _ not the landowner _ that must carry
the burden of producing a "description of the entire tract or
tracts of land affected by the taking sufficient for the
identification thereof[.]" See also Redevelopment Comm'n of City
of Washington, N.C. v. Grimes
, 277 N.C. 634, 643, 178 S.E.2d 345,
350 (1971) ("[I]n order to invoke [the power of eminent domain] the
[petitioner] must affirmatively allege compliance with the
statutory requirements."); City of Charlotte v. McNeely
, 8 N.C.
App. 649, 653, 175 S.E.2d 348, 351 (1970) ("[W]hen the City
undertook to exercise the power of eminent domain . . ., it was
necessary that it both allege and prove compliance with statutoryprocedural requirements."). We, therefore, hold that defendants'
denial was sufficient to raise the issue in the pleadings.
Accordingly, defendants were entitled to present evidence on the
issue of the affected property.
 With respect to whether defendants were harmed by this
error, defendants argue that they would have offered evidence
indicating that other tracts were used in "unity" with the
properties over which the City's easements crossed and that those
tracts will, as a result, also be "affected" by the City's takings.
We note as a preliminary matter that the City, in support of its
contention that defendants were not harmed by the trial court's
error, has attached various documents from outside the record as
appendices to its briefs before this Court. We cannot, however,
consider any of those items as they are not part of the record on
appeal and, therefore, may not be included in an appendix under
N.C.R. App. P. 28(d). See also Woodburn v. N.C. State Univ.
N.C. App. 549, 551, 577 S.E.2d 154, 156 (striking appendix under
N.C.R. App. P. 28 because it was not part of record), disc. review
, 357 N.C. 470, 584 S.E.2d 296 (2003).
N.C. Gen. Stat. § 40A-67 (2005) specifies that "[f]or the
purpose of determining compensation under this Article, all
contiguous tracts of land that are in the same ownership and are
being used as an integrated economic unit shall be treated as if
the combined tracts constitute a single tract." This Court has
explained: "The distinction between whether the condemned lots are
part of a unified parcel of land or instead independent parcels issignificant because, if treated as a unified parcel, the damages
from the condemnation are calculated by the effect on the property
as a whole and not based solely on the value of the condemned
lots." Dep't of Transp. v. Roymac P'ship
, 158 N.C. App. 403, 407,
581 S.E.2d 770, 773 (2003), appeal dismissed
, 358 N.C. 153, 592
S.E.2d 555 (2004).
In determining whether condemned land is part of a unified
tract, North Carolina courts consider three factors: (1) physical
unity, (2) unity of ownership, and (3) unity of use. Barnes v.
N.C. State Highway Comm'n
, 250 N.C. 378, 384, 109 S.E.2d 219, 224-
25 (1959). Although all three factors need not be present, some
unity of ownership must be established when separate parcels of
land are involved. Bd. of Transp. v. Martin
, 296 N.C. 20, 26, 249
S.E.2d 390, 395 (1978).
In the present case, there is no dispute that the parcels
involved all adjoin and, therefore, satisfy the physical unity
requirement. See Roymac P'ship
, 158 N.C. App. at 407, 581 S.E.2d
at 773 ("Physical unity generally requires that 'parcels of land
must be contiguous to constitute a single tract of land.'" (quoting
Dep't of Transp. v. Rowe
, 138 N.C. App. 329, 333, 531 S.E.2d 836,
839 (2000), rev'd on other grounds
, 353 N.C. 671, 549 S.E.2d 203
(2001), cert. denied
, 534 U.S. 1130, 151 L. Ed. 2d 972, 122 S. Ct.
1070 (2002))). The City does not dispute this factor.
As to the next factor, the City contends there is no unity of
ownership because: "Though, as of the date of taking, they each
owned a co-tenants [sic] share in the Slate Heirs Property, theydid not each own an interest in the homes of their respective co-
Appellants." The City's argument is, however, contrary to Barnes
which specifically addressed tenants in common. In Barnes
Supreme Court held:
The parcels claimed as a single tract
must be owned by the same party or parties.
It is not a requisite for unity of ownership
that a party have the same quantity or quality
of interest or estate in all parts of the
tract. But where there are tenants in common,
one or more of the tenants must own some
interest and estate in the entire tract.
250 N.C. at 384, 109 S.E.2d at 225 (emphasis added). See also City
of Winston-Salem v. Tickle
, 53 N.C. App. 516, 528, 281 S.E.2d 667,
674 (1981) ("The test of substantial unity of ownership appears,
then, to be whether some one of the tenants in the land taken owns
some quantity and quality of interest and estate in all of the land
sought to be treated as a unified tract."), disc. review denied
304 N.C. 724, 288 S.E.2d 808 (1982).
Douglas and Shirley Slate seek to have the property involved
in the Douglas Slate action treated as a single tract with the
farmland that is the subject of the Slate Family action. Since
they are tenants in common as to the farmland, they can thus
present evidence of unity of ownership with respect to their tract
and the farmland. Likewise, Gary and Denise Slate are sole owners
of property that similarly adjoins the farm and have an ownership
interest with respect to the farmland as tenants in common. See
("[T]he significant factor is that the party who owns an
interest and estate in the parcel he seeks to include in the whole
for purposes of computing damages must also own an interest andestate in the tract taken, although the two interests and estates
need not be of the same quality or quantity.").
The question before this Court is not whether defendants will
in fact be able to prove unity of ownership or which tracts, if
any, should be treated as an integrated economic unit. The
question is whether the trial court's failure to conduct an
evidentiary hearing was harmless. Based on the possibility that
defendants may be able to show a unity of ownership as to some of
the additional tracts, we cannot determine that the trial court's
error was harmless. See Roymac P'ship
, 158 N.C. App. at 406-07,
581 S.E.2d at 773 (addressing whether the condemned lots should be
considered in unity with three other parcels with varying
Finally, "[u]nity of use is determined by whether the various
tracts of land are being used as an integrated economic unit." Id.
at 408, 581 S.E.2d at 773. Defendants' offer of proof _ included
in the record _ indicates that defendants would have offered
evidence that they used their property "as a single economic unit"
in conjunction with one another. Depending on the evidence
actually adduced at the hearing, this may be sufficient to
establish unity of use.
The City nevertheless argues, citing Wachovia Bank of N.C. v.
, 2002 N.C. App. LEXIS 170, 2002 WL 372516, 149 N.C. App. 234,
562 S.E.2d 304 (Mar. 5) (unpublished), cert. denied
, 356 N.C. 176,
569 S.E.2d 282 (2002), that there can be no unity of use unless the
owner has exclusive use of the entire tract alleged to be affectedby the taking. As an initial matter, we note that, in violation of
N.C.R. App. P. 30(e)(3), the City has failed to acknowledge that
is unpublished and failed to attach a copy of the opinion to
either of its briefs. In any event, Weeks
does not address "unity
of use" for condemnation purposes, but, rather, considers
exclusivity of use only in the context of adverse possession.
As the City has not made any other argument regarding unity of
use, we hold that defendants have made a sufficient showing to
warrant an evidentiary hearing on the issue of the property
affected. We express no opinions, however, on whether defendants'
evidence is sufficient under N.C. Gen. Stat. § 40A-67 or what
tracts of land, if any, should be treated as an integrated economic
Accordingly, we reverse and remand for an evidentiary hearing
limited to the issue of the property affected by the taking. Given
our resolution of this appeal, we need not address defendants'
remaining arguments. Swilling v. Swilling
, 99 N.C. App. 551, 554-
55, 393 S.E.2d 303, 305 (1990), aff'd in part and rev'd in part on
, 329 N.C. 219, 404 S.E.2d 837 (1991).
Reversed and remanded.
Chief Judge MARTIN and Judge WYNN concur.
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