Practitioners familiar with the general rule that only final judgments can be appealed might be surprised that litigants must sometimes appeal an interlocutory order to preserve their rights. This dynamic isn’t present in all cases, but occurs with some regularity in the context of condemnation proceedings. For example, in City of Wilson v. The Batten Family, LLC (N.C. Ct. App. Apr. 16, 2013), the North Carolina Court of Appeals held that, to preserve its rights to litigate an issue of access to condemned land, the Appellant was required to appeal an interlocutory order that did not appear to address the issue.
The dispute in City of Wilson concerned the condemnation of real property for a utility easement. Condemnation is one area of North Carolina law where there is there is long-established consensus that appellate review of certain interlocutory orders serves the interests of efficiency. See Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967); Dep’t of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). This is due, in part, to the unique procedure for condemnation cases. In particular, the general statutes contemplate that on a party’s motion in a condemnation case, the Court may “hear and determine any and all issues raised by the pleadings other than the issue of damages.” N.C. Gen. Stat. § 136-108 A hearing held pursuant to this statute can address any number of matters (e.g., necessary and proper parties, title to land, interest taken, area taken, etc.), whose resolution is necessary before a jury can assess just compensation. Nuckles, 271 N.C. at 14, 155 S.E.2d at 784. Accordingly, an order from a condemnation hearing concerning title and area taken addresses “‘vital preliminary issues’ that must be immediately appealed pursuant to N.C.G.S. §1-277.” Rowe, 351 N.C. at 176, 521 S.E.2d at 709 (citation omitted) (emphasis added). City of Wilson underlines this last point.
On 8 July 2010, the parties in City of Wilson had a hearing that addressed a single issue concerning the treatment of certain parcels of land for purposes of the taking. The Court issued an Order that resolved this legal dispute and explained that “the only issue remaining [was] that of just compensation.” Later, in November 2011, the defendant moved (again) to have another hearing pursuant to N.C. Gen. Stat. § 136-108—this time to address its access to the affected property. The trial court heard defendant’s motion, reviewed the submitted evidence, and, ultimately, denied the motion for a second hearing.
The Court of Appeals issued two interesting rulings. First, the Court held that at a condemnation hearing pursuant to § 136-108 “a party must argue all issues of which it is aware, or reasonably should be aware.” Second, the failure to appeal the July 2010 Order within thirty days of entry caused defendant to lose its right to appeal that order, per N.C. R. App. P. 3(c)(1).
As to the first holding, the Court left open the question as to “whether a second hearing, pursuant to N.C.G.S. § 136-108, might be appropriate in some circumstances.” The Court did not speculate as to what those circumstances might be. Nevertheless, one can imagine any number of thorny “what-ifs” that might arise in the future when parties to a condemnation suit have a hearing and then (1) discover new information later; (2) unreasonably fail to raise an issue at hearing and then try to introduce it to the court; or (3) argue that issues not raised in the first condemnation hearing were forever waived. In any of these circumstances, one can quickly imagine a scenario where North Carolina courts would allow for another condemnation hearing. Less likely, however, is the prospect of a motion for a second condemnation hearing to be granted where a trial court repeatedly notes that the only remaining issue in the case concerns “that of just compensation.” Such was the case with the trial court’s rulings in City of Wilson.