              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-445

                              Filed: 30 December 2016

Cumberland County, Nos. 12 CVS 3993, 4714

DEPARTMENT OF TRANSPORTATION, Plaintiff,

             v.

JOSEPH P. RIDDLE, III, and wife,
TRINA T. RIDDLE, et. al., Defendants.



      Appeal by Defendants and cross-appeal by Plaintiff from order entered 24

November 2015 by Judge Mary Ann Tally in Cumberland County Superior Court.

Heard in the Court of Appeals 18 October 2016.


      Attorney General Roy Cooper, by Assistant Attorneys General Alvin W. Keller,
      Jr., Elizabeth N. Strickland, and Shawn R. Evans, for Plaintiff.

      The Law Offices of Lonnie M. Player, Jr., PLLC, by Lonnie M. Player, Jr. and
      Jennifer L. Malone, for Defendants.


      STEPHENS, Judge.


      Defendants Joseph P. and Trina T. Riddle (“the Riddles”) appeal from the trial

court’s order pursuant to N.C. Gen. Stat. § 136-108 determining all issues other than

just compensation in this condemnation action. Plaintiff North Carolina Department

of Transportation (“DOT”) cross-appeals from the same order. The Riddles argue that

the trial court erred by (1) making findings of fact not supported by competent

evidence, (2) making conclusions of law which are not supported by the court’s
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findings of fact, and (3) concluding that the map showing the area affected by the

condemnation should include only lots 1, 2, and 7.1 DOT argues that the trial court

erred by (1) concluding that there was unity of use and ownership between Lots 1, 2,

and 7, (2) making findings of fact not supported by competent evidence, (3) making

conclusions of law which are not consistent with existing law in North Carolina and

not supported by competent evidence, and (4) ordering that lots 1, 2, and 7 be

considered a single unified tract for the determination of just compensation and that

DOT amend the map of the area affected by the condemnation accordingly. We

dismiss both parties’ appeals.

                             Factual and Procedural Background

       On 8 January 2002, Mr. Riddle bought twenty-six acres of land in Cumberland

County from Elease Kenyon. The property was zoned for a planned commercial

district.

       On 15 January 2002, Mr. Riddle filed articles of organization with the State

for Vander Center, LLC. Mr. Riddle is the sole member of Vander Center.

       On 9 May 2002, Vander Center entered into a twenty-year lease with Food

Lion, LLC for a building to be constructed on lot 1. On 24 June 2002, Vander Center




       1  The Riddles’ briefs and the trial court’s order refer to lots 2 and 7. DOT refers to the same
lots as parcels 10 and 12 respectively. For clarity, we will refer to the condemned lots as 2 and 7, in
conformity with the trial court’s order.

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entered into a lease with Family Dollar Stores of North Carolina, Inc. for a building

to be constructed on lot 1.

      In June 2002, Mr. Riddle submitted a petition to Cumberland County

requesting six lots to be approved for subdivision, as well as a site plan review for lot

1. The site plan map showed lot 7, which did not have a lot number yet, as being

“owned by others.” All of these lots 1 through 7 were on the twenty-six acres

purchased by Mr. Riddle in January 2002.

      On 9 July 2002, Mr. Riddle deeded 9.1 acres of Lot 1 to Vander Center. On 16

July 2002, the County approved the preliminary site plan subject to certain

conditions. One of the conditions was that lot 7 be given a lot number, access to the

shopping center, and twenty feet of frontage. Another requirement stated that “[a]

separate submittal [would] be required to [DOT]” for subdivision approval.

      On 12 February 2003, Mr. Riddle recorded a survey plat of “Colt Crossing” in

the office of the Cumberland County Register of Deeds at Plat Book 108, Page 104.

The plat showed lots 1 through 7, access points to lot 1, and reserved signage

easements. In addition, the plat showed a right of way of 0.285 acres north of lot 2

“dedicated to the NC Department of Transportation per this recordation.” The area

to the northeast of lot 1 was labelled “proposed new highway 24.” The plat did not

show any structures or planned development.




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       On 4 March 2003, the Riddles conveyed an additional 0.745 acres of lot 1 and

all of lots 2 through 6 to Vander Center. On 11 March 2003, Vander Center secured

financing of $4,050,000 for “the construction of an improvement on land.” The debt

was secured by lots 1 through 6 as shown on the survey plat of Colt Crossing.

       On 2 July 2004, Vander Center deeded lots 2 through 6 to Mr. Riddle. Mr.

Riddle subsequently revised lots 5 and 6, and sold the revised lot 5 to Boddie-Noell to

construct and operate a Hardees.

       On 15 July 2010, Mr. Riddle deeded lots 6 and 7 to himself and Mrs. Riddle as

tenants by the entirety.

       In 2012, DOT filed two actions in Cumberland County Superior Court to

condemn lots which are allegedly part of the Colt Crossing development in order to

reroute North Carolina Highway 24. In 12 CVS 3993, DOT filed a complaint and

declaration of taking on 30 April 2012 naming the Riddles, Family Dollar Stores of

North Carolina, Inc., and Food Lion, LLC as defendants. DOT sought to condemn fee

simple title to a right of way of 0.198 acres and a permanent utility easement of 0.145

acres on Lot 2. In 12 CVS 4714, DOT filed a complaint and declaration of taking on

21 May 2012 naming the Riddles as defendants. DOT sought to condemn fee simple

title to a right of way of 2.002 acres on lot 7.

       On 20 December 2012, the Riddles deeded lots 6 and 7 to themselves as tenants

in common and not tenants by the entirety. On the same day, Mr. Riddle transferred



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his one-half tenant-in-common interest to Diane Harrell, trustee of the Joseph P.

Riddle, III Escrow Trust.

      On 7 March 2014, the Riddles filed a motion in the cause for an order pursuant

to N.C. Gen. Stat. § 136-108 determining all issues other than just compensation in

both condemnation cases filed by DOT. The motions came on for hearing together at

the 24 March 2014 civil session of the Cumberland County Superior Court, the

Honorable Mary Ann Tally, Judge presiding. On 8 July 2014, the trial court entered

an order determining that lots 2 and 7 should be considered a single unified tract for

the purposes of determining just compensation, and that DOT should amend the map

of the area affected by the condemnation to include lots 2 and 7.

      The Riddles appealed to this Court on 9 July 2014. In an unpublished opinion

filed 2 June 2015, this Court remanded the case to the trial court, because the 8 July

2014 order failed to determine all of the issues in that it did not address any of the

Colt Crossing lots other than lots 2 and 7.

      The Riddles’ motions in the cause came on for hearing on remand at the 26

October 2015 civil session of the Cumberland County Superior Court, the Honorable

Mary Ann Tally, Judge presiding. The order of the trial court, filed 24 November

2015, stated in pertinent part:




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FINDINGS OF FACT

....

2. In these lawsuits, DOT named all parties who may have
an interest or claim to have an interest in the lands taken,
as required by N.C. Gen. Stat. § 136-103(b)(4). Defendants
Joseph P. Riddle, III, and wife, Trina T. Riddle, filed
answers to these complaints, but no other defendant has
answered or has otherwise appeared in these cases.

3. The takings consist of 0.198 acres (8,643 square feet) in
new right-of-way and 0.145 acres (6,321 square feet) as a
permanent utility easement in Case No. 12 CVS 3993 (DOT
Parcel 10), and 2.061 acres in new right-of-way in Case No.
12 CVS 4714 (DOT Parcel 12).

4. A tract of land that eventually became the Vander
Center, LLC, property and several outparcels was initially
acquired by Defendant Joseph P. Riddle, III [] by Warranty
Deed dated January 8, 2002. A small cemetery, located
within the tract, was acquired by Riddle in a Warranty
Deed dated May 9, 2002.

....

12. [The Riddles] are holding Lots 2 and 7 for future
development under a common plan or scheme to develop as
shopping center outparcels. This holding of the property for
future development is a present use.

13. The present use of Lot 1 is as a fully-developed and
completely constructed shopping center consisting of a
Food Lion, Family Dollar, and other retail establishments.

CONCLUSIONS OF LAW

1. This Court has jurisdiction to hear this remand and
these motions to determine the scope of the takings by
DOT, pursuant to N.C. Gen. Stat. § 136-108.


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2. In a condemnation action, in order to consider separate
parcels of land as a single tract for purposes of determining
damages in separate condemnation proceedings, there
must be physical unity, unity of use, and unity of
ownership.

3. Unity of use is the most important factor in determining
unity of lands. Without unity of use, there can be no unity
of lands. Barnes v. N.C. Hwy. Comm’n, 250 N.C. 378, 385,
109 S.E.2d 219, 225 (1959) ("Regardless of contiguity and
unity of ownership, ordinarily lands will not be considered
a single tract unless there is unity of use.")

4. Unity of use requires that the properties be presently,
actually, and permanently used in the same manner as an
integrated economic unit. Town of Midland v. Wayne,
   N.C. , , 773 S.E.2d 301, 308 (2015). The unifying use
must be a present use; a mere intended use cannot be given
effect. Barnes at 385, 109 S.E.2d at 225.

5. [The Riddles] are holding Lots 2 and 7 for future
development under a common plan or scheme fully to
develop the property as outparcels for the shopping center
which is presently developed on Lot 1. This holding of
property for future development is a present use.

6. The unity of use is not defeated by the fact that
outparcels on Lots 2 and 7 in this commercial development
were not fully developed at the time of taking. City of
Winston-Salem v. Yarbrough, 117 N.C. App. 340, 346, 451
S.E.2d 358, 363, disc. rev. denied, 340 N.C. 260, 456 S.E.2d
519 (1995); D.O.T. v. Nelson Co., 127 N.C. App. 365, 489
S.E.2d 449 (1997).

7. Unity of ownership is established within the meaning of
Town of Midland v. Wayne by Mr. Riddle’s sole ownership
of Vander Center, LLC, as owner of Parcel 1, and by Mr.
Riddle’s ownership in the entireties with his wife, Trina T.



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Riddle, of Parcels 2 and 7. Id. at     , 773 S.E.2d 301, 307-
309 (2015).

8. Lots 1, 2, and 7 have physical unity.

9. The maps submitted into evidence in the case on
damages must accurately reflect the true nature of the land
being taken, which in this case is Lots 1, 2, and 7.

10. [DOT’s] maps depicting the areas taken in both cases
at bar do not accurately reflect the areas affected by the
take and must be amended before the trial on damages.

11. The use of [DOT’s] maps at trial on the issue of damages
stands to confuse or mislead the jury and they should not
be admitted into evidence in their present state.

IT IS NOW, THEREFORE, ORDERED, ADJUDGED, and
DECREED as follows:

1. Lots 1, 2 and 7 of the [Riddles]’ Recorded Plat shall be
consolidated and considered a single, unified tract for the
purposes of determining just compensation in these
condemnation proceedings.

2. Lots 3, 4, 5, and 6 shall not be consolidated with Lots 1,
2 and 7, nor shall any of these lots be considered a single,
unified tract with Lots 1, 2 and 7 for the purposes of
determining just compensation in these condemnation
proceedings.

3. [The Riddles]’ Motion in the Cause is therefore
GRANTED IN PART and DENIED IN PART.

4. [DOT]’s court map must be amended in conformity with
this Order to include Lots 1, 2 and 7 as a single tract before
the trial on damages.

5. The parties shall bear their own expenses associated
with this motion.


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      On 17 December 2015, the Riddles filed a notice of appeal. On 23 December

2015, DOT filed a notice of cross-appeal.

                                       Discussion

      On appeal, the Riddles argue that the trial court erred in finding that only lots

1, 2, and 7 should be considered a unified tract for the purposes of determining just

compensation rather than lots 1 through 7 of the development of Colt’s Crossing. DOT

argues that the trial court erred in finding that lots 1, 2, and 7 should be considered

as a unified parcel rather than just lots 2 and 7. We dismiss both appeals as

interlocutory and not affecting a substantial right.

1.    Interlocutory nature of the appeal

      This appeal is interlocutory. “Generally, there is no right of immediate appeal

from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C.

723, 725, 392 S.E.2d 735, 736 (1990). “If a party attempts to appeal from

an interlocutory order without showing that the order in question is immediately

appealable, we are required to dismiss that party’s appeal on jurisdictional grounds.”

Hamilton v. Mortg. Info. Servs., Inc., 212 N.C. App. 73, 77, 711 S.E.2d 185, 189 (2011).

“An interlocutory order is one made during the pendency of an action, which does not

dispose of the case, but leaves it for further action by the trial court in order to settle

and determine the entire controversy.” Veazey v. City of Durham, 231 N.C. 357, 362,

57 S.E.2d 377, 381 (citations omitted), reh’g denied, 232 N.C. 744, 59 S.E.2d 429


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(1950). “[I]mmediate appeal is available from an interlocutory order or judgment

which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d

577, 579 (1999) (citation and internal quotation marks omitted).

      In N.C. Dep’t of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999), our

Supreme Court addressed interlocutory appeals of orders pursuant to section 136-

108 in condemnation proceedings. The defendants in Rowe owned 18.123 acres of land

in Catawba County. Id. at 173, 521 S.E.2d at 708. DOT condemned 11.411 acres of

the defendants’ land for a highway project. Id. The defendants were left with four

parcels of land totaling 6.712 acres. Id. The trial court conducted a hearing pursuant

to section 136-108 to determine all of the issues in the condemnation proceeding other

than damages. Id. In its order, the trial court concluded that the defendants’

remaining four parcels were a “physically unified parcel affected by the taking.” Id.

at 174, 521 S.E.2d at 708. Following a trial on the issue of damages, the defendants

appealed the final judgment. Id. This Court reversed the trial court’s judgment on

the issue of damages, but held that the appeal of the trial court’s order regarding the

unity of the defendants’ parcels was untimely, because it affected a substantial right

and was required to be immediately appealed under N.C. State Highway Comm'n v.

Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967). Id.

      The Supreme Court reversed this Court’s opinion, clarifying that in Nuckles,

“[a]t the condemnation hearing . . . , the parties contested the area of land being taken



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by the State Highway Commission.” Rowe, 351 N.C. at 175, 521 S.E.2d at 709. The

Court further explained that the defendants in Nuckles were required to appeal

immediately, because “the purpose of the N.C.[ Gen. Stat.] § 136-108 condemnation

hearing is to eliminate from the jury trial any question as to what land the State

Highway Commission is condemning and any question as to its title.” Id. at 175-76,

521 S.E.2d at 709. It was in this context that the Court in Nuckles “recognized that

orders from a condemnation hearing concerning title and area taken are vital

preliminary issues that must be immediately appealed.” Id. at 176, 521 S.E.2d at 709.

      The Supreme Court then contrasted the defendants in Rowe, who contested

“only the unification of the four remaining tracts, not what parcel of land is being

taken or to whom that land belongs.” Id. In light of the purpose of section 136-108,

the Court held that the trial court’s order regarding the unification of the defendants’

parcels did “not affect any substantial right of these defendants.” Id. To further

clarify, the Court stated, “To the extent that Nuckles has been expanded to other

issues arising from condemnation hearings, we now limit that holding to questions of

title and area taken.” Id.

      Here, the trial court’s 24 November 2015 order is interlocutory, because it does

not address damages. Thus, it does not dispose of all of the issues in the case.

      Both the Riddles and DOT assert that the trial court’s order affects a

substantial right, because it affects “title or area taken.” However, like the defendants



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in Rowe, the Riddles do not contest the ownership of the parcels condemned by DOT

or the area condemned by DOT. The issues raised on appeal by both parties stem

from the trial court’s finding of unity between parcels 1, 2, and 7.2 Therefore, because

the parties do not dispute the title to the condemned property or the area of land

condemned by DOT, the trial court’s order does not affect a substantial right of either

party. Accordingly, appeal of the trial court’s order is premature and not properly

before this Court.

       DISMISSED.

       Judges BRYANT and CALABRIA concur.




       2  DOT argues in its cross-appeal that the trial court’s finding of fact number 3 is erroneous,
because it finds the incorrect acreage for the right of way taken on lot 7. However, DOT did not make
any argument to the trial court that the evidence showing a taking of 2.061 acres was incorrect; in
fact, DOT’s witness testified at the initial condemnation hearing that he was asked by DOT to assess
the value of the condemned property based on “a taking of 2.061 acres.” Because DOT did not argue to
the trial court that the acreage of the taking was not 2.061 acres, this argument is not properly
preserved for appellate review. N.C.R. App. P. 10(a)(1).

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