Filed 15 June 2010 This case not for publication
Appeal by Plaintiffs from order entered 20 March 2009 by Judge Mark E. Powell in Superior Court, Henderson County. Heard in the Court of Appeals 10 February 2010.
The Sutton Firm, P.A., by April Burt Sutton, for Plaintiffs-Appellants. Attorney General Roy Cooper, by Assistant Attorney General David P. Brenskelle, for Defendant-Appellee.
Henderson County No. 06 CVS 731.
Evidence presented to the trial court tends to show that Plaintiffs owned real property located on Deep Gap Road (the road) in Henderson County. In 1996, Defendant began a project to widen and pave a portion of the road (the project). Prior to initiating construction on the project, Defendant sought to obtain a right-of-way from Plaintiffs for the widening of the road abutting Plaintiffs' real property. Plaintiffs refused, stating they did not want that portion of the road paved. Defendant paved the contested portion of the road without Plaintiffs' consent and without acquiring any of Plaintiffs' real property through condemnation proceedings. In the process of widening the road, Defendant cut into a sloping bank on Plaintiffs' property in 1996 or 1997. According to the findings of fact in the trial court's 20 March 2009 order, Defendant completed the paving of the road in 1997. Following Defendant's cutting away of a portion of the bank on Plaintiffs' property, the remaining bank began to erode. After heavy rains, the ditch below the bank and beside the road would fill up with earth, and some earth would spill over onto the road. Defendant cleared away this accumulated earth on multiple occasions. Following Hurricanes Ivan and Frances in 2004, a large portion of the bank "caved off and blocked the road." Plaintiffs contacted Defendant immediately upon seeing the erosion, and Defendant made attempts to control the erosion.
However, a witness who worked for Defendant testified that he thought they "finished the paving in the spring of 1998.
Defendant, upon being informed of the problem by Plaintiffs, initially sent a representative, Bob Corn (Corn), to inspect Plaintiffs' real property. Corn stated, "well I guess I've created a mess." Corn told Plaintiffs that "this is going to lead to a bigger problem" and that Plaintiffs should contact someone in "Raleigh." A few weeks later, Corn and a representative from Raleigh, Mr. Ledbetter, came to examine Plaintiffs' property again. According to Plaintiffs, Corn and Mr. Ledbetter said, "the only thing that they could figure out to do was to build a wall. And hop[e] that that would stop [the bank from] eroding[.]" Corn later informed Plaintiffs that he and Mr. Ledbetter had decided to file a request for a wall to prevent further erosion. Corn indicated that the request would have to "go through Raleigh," and that "it would probably take a while to get it done." Six months later, Plaintiffs contacted Corn, who informed Plaintiffs that he had not heard anything about the status of the request. Plaintiffs continued to ask Corn about the wall, and Corn continued to inform Plaintiffs that he could not say when the request would be approved, but that "it depended on the budget" and that it "could take years." Testimony suggests that a small wall was built; however, it is unclear from the testimony who built the wall, or when it was built. It is clear from the testimony that the wall was ineffective.
Plaintiffs contacted Defendant numerous times between the time Defendant cut away part of the bank on Plaintiffs' property and the filing of this lawsuit, and Defendant attempted to address the issue in several ways. Defendant first attempted to promote the growth of grass on the bank to stabilize the soil. Defendant continued to use that approach, along with either removing earth that had eroded from the bank, or by attempting to move earth back onto the bank, from 1998 until 2005. These attempts took place at least two to five times a year during that period. In 2005, Defendant hired a contractor to "shoot" approximately 150 twenty-foot metal rods into the bank in an effort to hold the soil together and prevent further erosion. This effort was not successful. Following the failure of the metal rods to control the erosion, Plaintiffs again contacted Defendant, and a representative of Defendant came to Plaintiffs' property. This representative informed Plaintiffs that he did not know what else to try, and that Defendant would not continue to try and solve the problem. At this point in time, someone from the State asked Plaintiffs to sign an agreement releasing Defendant from liability. Plaintiffs refused to sign the agreement, and Defendant ceased any further attempt to remedy the problem. Plaintiffs' bank continued to erode.
Plaintiffs filed the complaint in this matter on 2 May 2006. Plaintiffs' claim against Defendant was for inverse condemnation of Plaintiffs' real property. Defendant moved to dismiss Plaintiffs' action on 27 June 2006, pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), (2), and (6). The trial court denied Defendant's motion to dismiss by order entered 25 July 2006. Defendant filed its answer on 2 August 2006, which included five affirmative defenses. Relevant to this appeal, Defendant alleged that Plaintiffs had failed to file their claim within the two-year statute of limitations imposed by N.C. Gen. Stat. § 136-111, which states in relevant part:
Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Department of Transportation and no complaint and declaration of taking had been filed by said Department of Transportation may, within 24 months of the date of the taking of the affected property . . . or the completion of the project involving the taking, whichever shall occur later, file a complaint in the superior court[.]
The matter was heard before the trial court on 19 September 2008, pursuant to N.C. Gen. Stat. § 136-108. By order entered 20 March 2009, the trial court ruled that Plaintiffs had failed to file their claim within the two-year statute of limitations. The trial court therefore dismissed Plaintiffs' action. Plaintiffs appeal.
Plaintiffs argue that the trial court's finding of fact stating that Defendant "completed its work on [the] project during  or sometime in 1997" is not supported by sufficient competent evidence. Plaintiffs further argue that the trial court failed to "make sufficient findings of fact concerning the full scope of . . . Defendant's project and the completion date of the full project." We agree.
[E]ither DOT or another party to a condemnation proceeding may request a section 136-108 hearing, at which the judge "shall . . . hear and determine any and all issues raised by the pleadings other than the issue of damages[.]" N.C.G.S. § 136-108 (1986). The judge's function at a section 136-108 hearing is to decide all questions of fact other than damages and to adjudicate DOT's right to condemn the specified property. See North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).
DOT v. Overton, 111 N.C. App. 857, 859, 433 S.E.2d 471, 473 (1993). "In cases where the trial judge sits as the trier of facts, he is required to (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising on the facts found; and (3) enter judgment accordingly." Gilbert Engineering Co. v. Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 857 (1985) (citations omitted).
It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. A trial court's conclusions of law, however, are reviewable de novo.
Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (internal citations omitted); Carolina Beach Fishing Pier, Inc. v. Carolina Beach, 274 N.C. 362, 368, 163 S.E.2d 363, 368 (1968) (citation omitted) ("review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form").
In support of its dismissal of Plaintiffs' action, the trial court made the following findings of fact:
Sometime in the year 1996, [Defendant] performed work on a project to pave . . . Deep Gap Road and completed its work on that project during that year or sometime in 1997. Prior to performing its work on the project, [Defendant] attempted to negotiate the acquisition of additional right of way or property from [Plaintiffs] without success.
In performing work on the project, [Defendant] graded and steepened the bank in front of, and located at least partially on, property claimed to be owned by [Plaintiffs] located along that roadway at 3267 Deep Gap Road without filing a complaint or declaration of taking to acquire additional right of way or property from [Plaintiffs] in order to grade and steepen said bank. [Plaintiffs] were aware that this work was being performed by [Defendant] without the acquisition of said right of way or property upon property in which they claimed ownership.
Almost immediately, after the grading and steepening of the bank in front of [P]laintiffs'] property, the portion of the graded and steepened bank located on the property claimed to be owned by [Plaintiffs] began to calve and erode away. [Plaintiffs] first noticed and became fully aware of this calving and erosion no later than sometime in 1997, and the bank continued to calve and erode away up through the time [Plaintiffs] instituted this proceeding by filing a Complaint for inverse condemnation in this [c]ourt on May 2, 2006.
"`It is well settled that when there is doubt as to the time when the limitation commences to run, that construction should be given which is most favorable to the enforcement of the common-law rights of the citizen.'" Carolina Beach Fishing Pier, 274 N.C. at 372, 163 S.E.2d at 370 (citation omitted). "[T]he right of private property is a fundamental, material, inherent and inalienable right. It is a common-law right which existed before the adoption of the Federal and State Constitutions." Id. (citation omitted).
"Upon what principle of law, justice, or reason can it be said that because one clothed with the right to condemn private property fails to exercise it, and without complying with the law goes upon the property of another and carries out its public purposes without hindrance or interference from the owner, it should not thereafter be required to do what it should have done in the first instance — make just compensation to the owner? Why should the property holder whose acquiescence has redounded to the benefit and convenience of the taker and whose right to compensation is in lieu of his property have any less period in which to recover the amount due him than he would have had to reclaim his property had he not thus accommodated the corporation? Why should a municipality which has not exercised a right conferred upon it by the sovereignty in the manner defined by the author of the right gain an additional advantage over a private owner by virtue of its own unauthorized procedure?"
The statutory period runs from the completion of the "project." This does not necessarily mean it runs from the completion of construction. The fact that defendant accepted the improvements is not relevant as it did so on condition that the project be completed with necessary maintenance. Defendant's authorization of final payment on 5 September 1984 and subsequent payment on 7 September 1984 show that defendant did not consider the project completed until the maintenance period was over. For these reasons, we hold completion of the project was not until 31 August 1984, and the trial court erred in granting summary judgment to defendant based on the statute of limitations. This action is therefore remanded to the Superior Court for further proceedings on the claim of inverse condemnation.
In the case before us, the trial court's sole finding of fact concerning the completion of the project is ambiguous. It states: "Sometime in the year 1996, [Defendant] performed work on a project to pave . . . [the road] and completed its work on that project during that year or sometime in 1997." It is clear that Defendant completed paving the road by sometime in 1997. It is also clear that Defendant continued to work on stabilizing Plaintiffs' real property, which was destabilized due to Defendant's unauthorized taking of Plaintiffs' real property, until sometime in 2005. Plaintiffs alleged that Defendant did not request Plaintiffs to sign a waiver of liability until 2005, after many failed attempts to correct the problem caused by Defendant's widening of the road. This is some evidence that Defendant did not consider the project complete until at least 2005, subsequent to the completion of the paving of the road.
Or in 1998, if the testimony of one of Defendant's employees is correct.
The trial court made no findings of fact concerning Defendant's ongoing work on Plaintiffs' real property, or the alleged request for a waiver in 2005. Gilbert, 74 N.C. App. at 364, 328 S.E.2d at 857-58 ("The facts required to be found are the ultimate facts established by the evidence which are determinative of the questions involved in the action and essential to support the conclusions of law reached. The requirement is designed to `dispose of the issues raised by the pleadings' and to permit `a reviewing court to determine from the record whether the judgment — and the legal conclusions which underlie it — represent a correct application of the law.'" (citations omitted)). Because of this lack of relevant findings, we are unable to determine whether the trial court properly considered the facts in light of the relevant law. We cannot, therefore, make an informed decision concerning whether the trial court's findings and conclusions were proper, and whether they support its ruling in this matter. For this reason, we remand to the trial court for further findings of fact, and, if necessary, further conclusions of law, consistent with this opinion. The trial court may, in its discretion, allow the introduction of additional evidence.
Reversed and remanded.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).