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    "judges": [
      "Judges WYNN and STEPHENS concur."
    ],
    "parties": [
      "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff v. COUNTY OF DURHAM, Defendant"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nOn 13 December 2004, the North Carolina Department of Transportation (\u201cthe DOT\u201d) commenced this action to condemn real property owned by the County of Durham (\u201cthe county\u201d). On 7 January 2005, the county moved to dismiss for lack of personal and subject matter jurisdiction based on sovereign immunity, failure to allege a waiver of sovereign immunity, and lack of authority to take the property. On 3 August 2005, the county moved to dismiss for the DOT\u2019s failure to prosecute its case. On 30 August 2005, the county moved for an award of costs pursuant to N.C. Gen. Stat. \u00a7 136-119. On 12 September 2005, the court heard and denied all of the county\u2019s motions, and granted the DOT\u2019s oral motion to enter findings of fact and conclusions of law. The court entered said order on 19 October 2005. The county appeals. As discussed below, we affirm.\nThis condemnation action arises as part of a road-widening project for state road 15-501 in southwestern Durham County. At the hearing, the county presented affidavits indicating the property at issue was acquired as part of the New Hope Corridor Open Space Master Plan with partial funding from the Clean Water Management Trust Fund. The county conceded that the taking here was less than one acre of land and included temporary construction and drainage easements and a permanent drainage easement.\nThis appeal is interlocutory.\nAn 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. Generally, the denial of a motion to dismiss is an interlocutory order from which there may be no immediate appeal. Nevertheless, [a]n interlocutory appeal is ordinarily permissible ... if (1) the trial court certified the order under Rule 54(b) of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review.\nMcClennahan v. N.C. Sch. of the Arts, 177 N.C. App. 806, 808, 630 S.E.2d 197, 199 (2006) (internal quotation marks and citations omitted). Appeals raising issues of sovereign immunity affect a substantial right and are immediately appealable. Id. The county properly cites authority for its appeal of the trial court\u2019s denial of its motions to dismiss based on sovereign immunity. However, the county also appeals from the trial court\u2019s denial of its motions to dismiss for the DOT\u2019s failure to prosecute its case and for costs. The county fails to cite any authority for these interlocutory appeals as required by Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379-80, 444 S.E.2d 252, 253-54 (1994). We dismiss those assignments of error based on the court\u2019s denial of the county\u2019s motion to dismiss for failure to prosecute and motion for costs.\nThe county argues that the trial court erred in failing to dismiss based on its sovereign immunity. We do not agree.\nThe county contends that sovereign immunity bars a suit by the State to condemn real property for a highway-widening project and that it \u201cenjoys the same sovereign immunity as the State .....\u201d The county cites Dawes v. Nash County, 357 N.C. 442, 584 S.E.2d 760, reh\u2019ing denied, 357 N.C. 511, 587 S.E.2d 417 (2003), Bell v. Commissioners of Johnston County, 127 N.C. 57, 37 S.E. 136 (1900), and Archer v. Rockingham County, 144 N.C. App. 550, 548 S.E.2d 788 (2001), disc. review denied, 355 N.C. 210, 559 S.E.2d 796 (2002), for the proposition that sovereign immunity applies to counties as the units that collectively make up the State. However, none of these cases involves a suit between a county and the State itself, and our research reveals no case in which a county has been able to assert sovereign immunity against the State, which is the sovereign itself. This Court has recognized that\nArticle VII, Section 1 of the North Carolina Constitution gives the General Assembly the authority to provide for the organization and government of counties, including the granting of such powers and duties to the counties as it deems advisable. As an agent of the State, a county has no inherent power, but may exercise only those powers prescribed by statute and those necessarily implied by law.\nIn re Easement in Fairfield Park, 90 N.C. App. 303, 308, 368 S.E.2d 639, 641-42 (1988). Because the counties derive their sovereign immunity and all other powers and authority from the State, we conclude that the counties\u2019 sovereign immunity cannot be superior to that of the State. This assignment of error lacks merit.\nAffirmed in part and dismissed in part.\nJudges WYNN and STEPHENS concur.\nThe judges participated and submitted this opinion for filing prior to 1 January 2007.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper.; by Assistant Attorney General Spurgeon Fields, III, and Assistant Attorney General James M. Stanley, Jr., for plaintiff-appellee.",
      "Assistant County Attorney Curtis Massey, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff v. COUNTY OF DURHAM, Defendant\nNo. COA06-283\n(Filed 2 January 2007)\n1. Appeal and Error\u2014 appealability \u2014 sovereign immunity\u2014 failure to prosecute \u2014 motion for costs\nAlthough the denial of defendant county\u2019s motions to dismiss based on sovereign immunity affects a substantial right and is immediately appealable, those assignments of error based on the court\u2019s denial of the county\u2019s motion to dismiss for failure to prosecute and motion for costs are dismissed because the county failed to cite any authority for appeals from these interlocutory orders as required by N.C. R. App. P. 28(b)(4).\n2. Immunity\u2014 sovereign \u2014 condemnation action between county and State\nThe trial court did not err in a condemnation action arising as part of a road-widening project for a state road in southwestern Durham County by denying defendant county\u2019s motion to dismiss based on sovereign immunity because the county\u2019s sovereign immunity cannot be superior to that of the State when the counties derive their sovereign immunity and all other powers and authority from the State.\nAppeal by defendant from order entered 19 October 2005 by Judge Steven A. Balog in the Superior Court in Durham County. Heard in the Court of Appeals 31 October 2006.\nAttorney General Roy Cooper.; by Assistant Attorney General Spurgeon Fields, III, and Assistant Attorney General James M. Stanley, Jr., for plaintiff-appellee.\nAssistant County Attorney Curtis Massey, for defendant-appellant."
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  "file_name": "0346-01",
  "first_page_order": 378,
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