              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-955

                                Filed: 16 October 2018

Wake County, No. 15 CVS 5836

TOWN OF APEX, Plaintiff,

             v.

BEVERLY L. RUBIN, Defendant.


      Appeal by plaintiff from order entered 24 January 2017 by Judge Elaine M.

O’Neal in Wake County Superior Court. Heard in the Court of Appeals 4 June 2018.


      Nexsen Pruet PLLC, by David P. Ferrell, for plaintiff-appellant.

      Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, and Boxley, Bolton,
      Garber & Haywood, LLP, by Kenneth C. Haywood, for defendant-appellee.


      BRYANT, Judge.


      Where the time for filing notice of appeal was not tolled, we find plaintiff’s

appeal to be untimely. We therefore grant defendant’s motion to dismiss plaintiff’s

appeal and deny plaintiff’s petition for writ of certiorari.

      Plaintiff Town of Apex filed a condemnation action on 30 April 2015 against

defendant Beverly L. Rubin in Wake County Superior Court. Plaintiff sought to

acquire an easement across defendant’s property and connect sewer access to an

adjoining property owned by a private developer.

      Before the case went to trial on the issue of just compensation, both plaintiff

and defendant filed motions seeking a “Section 108” hearing under N.C. Gen. Stat. §
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                                       Opinion of the Court



136-108 in order to determine if the condemnation was for public or private benefit.

On 1 August 2016, a Section 108 hearing was held before the Honorable Elaine M.

O’Neal, Judge presiding.

       At the hearing, defendant contested that plaintiff’s interest in her property

was for a public purpose “to improve the public utility system of the Town of Apex.”

Sometime between 2012 and 2013, Parkside Builders, LLC’s manager Brad Zadell

acquired multiple properties–formally known as Arcadia East–to the east of

defendant’s property and eventually combined these properties to create the proposed

subdivision called Riley’s Pond.1 Zadell applied for Riley’s Pond to be annexed into

the Town of Apex, which was approved in late 2013. Zadell continued buying property

surrounding defendant’s home. He purchased approximately twenty-nine acres along

the western border of defendant’s property and this property became known as

Arcadia West.       Zadell again petitioned for annexation, which was approved in

December 2013.

       Plaintiff owned and operated a sewer service in Arcadia West, however, Riley’s

Pond subdivision did not have a sewer service line at the time because the land was

not developed. Nine months prior to plaintiff’s approval to acquire a sewer easement



       1  We note from the record that Parkside Builders, LLC owned the property to the east of
defendant’s property. Brad Zadell acted in his official capacity as the manager-owner of Parkside
Builders, LLC. On or before 31 December 2014, before condemnation, Parkside Builders, LLC
conveyed Riley’s Pond to Transom Row Properties II, LLC, which was another company managed by
Zadell. For ease of reading, we refer to Zadell and Zadell-managed companies as “Zadell” throughout
this opinion.

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on defendant’s property, Zadell requested that plaintiff condemn defendant’s

property so that Riley’s Pond could be connected to a sewer line, thereby substantially

increasing the value of the land.     At various times during the annexation and

rezoning process, Zadell offered to purchase either defendant’s entire tract or an

easement so he could run a sewer to Riley’s Pond. Defendant refused those offers.

      Zadell met with Public Works and Utilities Director, Timothy Donnelly, to

discuss the status of acquiring the easement and requested that plaintiff use its

powers of eminent domain.        Donnelly then presented the matter to plaintiff.

Sometime prior to an Apex Town Council meeting, plaintiff’s attorney contacted

defendant to inquire about plaintiff purchasing an easement to enable it to provide

sewer service to Riley’s Pond.     Defendant was unwilling to sell, and plaintiff

considered alternative locations for the sewer line. Given the topography of the

property, plaintiff determined the route through defendant’s property was the most

appropriate one.

      On 10 February 2015, Zadell and plaintiff entered into a contract in which

Zadell agreed to be responsible for all costs and expenses associated with plaintiff’s

efforts to acquire a sewer easement through defendant’s property. On 26 February

2015, prior to the Apex Town Council meeting, a purchase contract was prepared in

which Zadell agreed to sell Riley’s Pond for $2.5 million more than its original




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                                  Opinion of the Court



purchase price. Five days later, on 3 March 2015, the Apex Town Council approved

plaintiff’s use of eminent domain to acquire an easement across defendant’s property.

      On 18 October 2016 following the 1 August Section 108 hearing, Judge O’Neal

concluded as a matter of law that the taking was for a private benefit and entered

judgment (“Section 108 Judgment”). On 28 October 2016, plaintiff filed a Verified

Motion for Reconsideration to Alter, Amend, and/or Seek Relief from Judgment

(“Motion for Reconsideration”), citing Rules 59 and 60(b) of the North Carolina Rules

of Civil Procedure.   The superior court denied this motion by order entered 24

January 2017 (the “Reconsideration Order”). Plaintiff appeals from both the Section

108 Judgment and the Reconsideration Order.

           _________________________________________________________

      On appeal, plaintiff argues the superior court erred in its conclusion that the

plaintiff’s claim to defendant’s property by eminent domain was for a private purpose.

Additionally, plaintiff contends that the superior court erred in denying the Motion

for Reconsideration. Defendant argues that plaintiff’s Motion for Reconsideration

from the Section 108 Judgment did not toll the thirty-day period for filing the notice

of appeal, and therefore, plaintiff’s appeal from the Section 108 Judgment is

untimely. We first address defendant’s argument and consider whether this Court

has jurisdiction.




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      Plaintiff filed its notice of appeal on 30 January 2017, which was more than

thirty days after the Section 108 Judgment was rendered on 18 October 2016.

Accordingly, in order to circumvent the jurisdictional bar to the appeal, plaintiff

contends that the Rule 59 Motion for Reconsideration filed on 21 October 2016 tolled

the thirty-day period for asserting a timely notice of appeal. We disagree.

      Rule 3(c) of the North Carolina Rules of Appellate Procedure provides that a

notice of appeal must be filed within thirty days after entry of a final judgment. N.C.

R. App. P. 3(c) (2017). “Appellate Rule 3 is jurisdictional and if the requirements of

this rule are not complied with, the appeal must be dismissed.” Currin-Dillehay Bldg.

Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683 (1990). North Carolina

courts have consistently held that “orders from a condemnation hearing concerning

title and area taken are ‘vital preliminary issues’ that must be immediately appealed

pursuant to N.C.G.S. § 1-277, which permits interlocutory appeals of determinations

affecting substantial rights.” City of Wilson v. Batten Family, L.L.C., 226 N.C. App.

434, 438, 740 S.E.2d 487, 490 (2013) (emphasis added) (quoting Dep’t. of Transp. v.

Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 709 (1999)).

      While rulings from a Section 108 hearing are typically interlocutory, an appeal

is mandatory as the appropriate remedy for issues involving title and area. See N.C.

State Highway Comm'n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967) (“One

of the purposes of [a Section 108 hearing is] to eliminate from the jury trial any



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question as to [the land or area condemned].              Therefore, should there be a

fundamental error in the judgment resolving these vital preliminary issues, ordinary

prudence requires an immediate appeal, for that is the proper method to obtain relief

from legal errors.” Therefore, “[w]hen [an] appeal is mandatory, the right will be lost

if [the] appeal is not made within thirty days after entry of judgment.” Wilson, 226

N.C. App. at 438, 740 S.E.2d at 490.

      Here, the Section 108 hearing involved whether plaintiff’s taking of

defendant’s property was motivated by a public use or benefit. Plaintiff was afforded

the opportunity to present evidence and other supporting documents to rebut

defendant’s claims of a taking motivated and supported by private interests.

Following the hearing, the superior court, considering all the evidence, issued a ruling

in favor of defendant. Plaintiff did not immediately appeal but instead filed a Rule

59 Motion for Reconsideration.

      Because a Section 108 judgment becomes a final judgment on the issues it

addresses if it is not immediately appealed, a proper motion for reconsideration under

Rule 59 could serve the same purpose if a party to a condemnation action actually

discovered new evidence after a Section 108 hearing, and that new evidence would

lead to a different determination on the area or interest taken. See N.C. Gen. Stat. §

1A-1, Rule 59(a)(4) (2017).

             To qualify as a [proper] Rule 59 motion within the meaning
             of Rule 3 of the Rules of Appellate Procedure, the motion


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             must “state the grounds therefor” and the grounds stated
             must be among those listed in Rule 59(a). The mere
             recitation of the rule number relied upon by the movant is
             not a statement of the grounds within the meaning of Rule
             7(b)(1). The motion, to satisfy the requirements of Rule
             7(b)(1), must supply information revealing the basis of the
             motion.

Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d. 415, 417 (1997) (citations and

quotation marks omitted).

      Although a Rule 59 motion will toll the time for an appeal, we consider the

motion based upon its substance. Notwithstanding the grounds listed in the motion,

the substance of plaintiff’s filing was not a proper Rule 59 motion. Plaintiff cites to

Rule 59 generally in its motion for reconsideration which alleges an attempt to

present new evidence; however, that evidence was admittedly available at the time

of the Section 108 hearing.

      In its motion, plaintiff concedes that “[a]lthough most of the evidence and facts

discussed herein existed at the time of the ‘all other issues’ [Section 108] hearing, it

was not known or reasonably anticipated that this evidence would be necessary. But

given the [c]ourt’s ruling in the matter, the [c]ourt should consider this evidence.”

Even assuming plaintiff did not reasonably anticipate the evidence needed at the

Section 108 hearing, a Rule 59 motion is not intended to be a second bite at the apple

where the evidence was in plaintiff’s possession or existed at the time of hearing and

plaintiff was afforded “every opportunity to argue all relevant issues in a single



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[Section 108] hearing.” Wilson, 226 N.C. App. at 439, 740 S.E.2d at 491; see also See

N.C. All. for Transp. Reform, Inc. v. N.C. Dep't of Transp., 183 N.C. App. 466, 470,

645 S.E.2d 105, 108 (2007) (“Although such deficiency would alone be adequate basis

for dismissal of the motion, the trial court also found that petitioners simply sought

to reargue matters from the earlier hearing, additionally supporting the court’s

conclusions that the Motion to Alter or Amend was not a proper Rule 59(e) motion.”).

Therefore, having determined the substance of plaintiff’s Rule 59 motion was not

proper, it could not effectively toll the thirty-day notice of appeal. See N.C. R. App.

P. 3(c).

       Accordingly, as the notice of appeal was untimely, plaintiff’s appeal from the

Section 108 Judgment is dismissed. Because plaintiff attempted to use an improper

Rule 59 motion as a substitute for appeal, we will not review an appeal from the

denial of such an improper motion. See Musick v. Musick, 203 N.C. App. 368, 371,

691 S.E.2d 61, 63 (2010) (“Neither a Rule 59 motion nor a Rule 60 motion may be

used as a substitute for an appeal.”).

       Following oral argument, plaintiff petitioned this Court, on 22 June 2018, to

exercise its discretion and grant a writ of certiorari as an alternative means to review

the merits of the superior court’s judgment. However, we decline to exercise our




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discretion to allow a writ of certiorari. See N.C. R. App. P. 21(a) (2017). Plaintiff’s

petition for a writ of certiorari is denied.2

        DISMISSED.

        Chief Judge MCGEE and Judge STROUD concur.




        2Although dicta, we note for plaintiff’s benefit that a review of the superior court’s findings of
fact and conclusions of law in the Section 108 Judgment appear to be supported by evidence in the
record. Further, a review of the underlying record, including the transcript and submissions of
evidence, appear to support the superior court’s denial of the Motion for Reconsideration.

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