{ "id": 4163582, "name": "JAMES A. WILFONG, and wife, MARIA HERRERA, Plaintiffs v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant", "name_abbreviation": "Wilfong v. North Carolina Department of Transportation", "decision_date": "2009-01-06", "docket_number": "No. COA08-400", "first_page": "816", "last_page": "819", "citations": [ { "type": "official", "cite": "194 N.C. App. 816" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "652 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639662 ], "year": 2007, "pin_cites": [ { "page": "233", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0231-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "433", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "208", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "254", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "361 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743751 ], "year": 2007, "pin_cites": [ { "page": "634", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0630-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "573 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250541 ], "year": 2002, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0454-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 136-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 } ], "analysis": { "cardinality": 414, "char_count": 6951, "ocr_confidence": 0.724, "pagerank": { "raw": 6.167528236630839e-08, "percentile": 0.3830453049579338 }, "sha256": "817b31238eaac8234eac0b27b14be27f4959f57497cd9a8f52b59efb273c5edb", "simhash": "1:0bcd532668fca460", "word_count": 1107 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs in the result only.", "Judge BRYANT concurs." ], "parties": [ "JAMES A. WILFONG, and wife, MARIA HERRERA, Plaintiffs v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant" ], "opinions": [ { "text": "ARROWOOD, Judge.\nDefendant, the North Carolina Department of Transportation (DOT), appeals from an order finding it liable to James Wilfong and Maria Herrera (Plaintiffs) for damages arising from Defendant\u2019s inverse condemnation of Plaintiffs\u2019 property. We dismiss as interlocutory.\nThis appeal arises from a road improvement project by Defendant that included widening of Cheek Road in Durham County, North Carolina. Plaintiffs own property on Cheek Road in the area scheduled for widening. In March 1998 Plaintiffs conveyed part of their property to Defendant and granted Defendant a construction easement that allowed Defendant reconnect Plaintiffs\u2019 driveway to the highway after the project was finished.\nOn 8 February 2005, plaintiffs filed an inverse condemnation action under N.C. Gen. Stat. \u00a7 136-111 (2007). Plaintiffs alleged that the highway had been raised higher than planned, making the grade of Plaintiffs\u2019 driveway so steep that they were \u201cdeprived of reasonable access to and from\u201d their property. In an answer filed in July 2007, Defendant denied the allegations of Plaintiffs\u2019 complaint and moved for dismissal under N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(1), (2), and (6). -\nIn October 2007, Plaintiffs filed a motion under N.C. Gen. Stat. \u00a7\u00a7 136-108 and 136-111 (2007), seeking a hearing to determine \u201call issues raised by the pleadings other than the issue of damages.\u201d A hearing was conducted in November 2007, addressing the project\u2019s history, the parties\u2019 interactions, and the change in the slope of Plaintiffs\u2019 driveway. In an order entered 31 December 2007, the trial court ruled that the change in road grade was a taking for which Plaintiffs were entitled to compensation. From this order Defendant timely appealed.\nWe conclude that Defendant\u2019s appeal is not properly before this Court. An order is either \u201cinterlocutory or the final determination of the rights of the parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a) (2007). \u201cAn 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.\u201d Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Defendant appeals from an interlocutory order entered following a hearing under N.C. Gen. Stat. \u00a7 136-108 (2007). \u201cBecause G.S. 136-108 hearings do not finally resolve all issues, an appeal from a trial court\u2019s order rendered in such hearings is interlocutory.\u201d Department of Transp. v. Byerly, 154 N.C. App. 454, 456, 573 S.E.2d 522, 523 (2002).\nWith two exceptions, \u201cthere is no right of immediate appeal from interlocutory orders and judgments.\u201d Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Appeal may be taken from an order that is \u201ca final judgment as to one or more but fewer than all of the claims or parties\u201d and if the trial court certifies that \u201cthere is no just reason for delay\u201d of the appeal. N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2007). \u201cAbsent a Rule 54(b) certification, an interlocutory order may be reviewed if it will injuriously affect a substantial right unless corrected before entry of a final judgment.\u201d Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 634, 652 S.E.2d 231, 233 (2007) (citations omitted).\n\u201cIt is not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (citation omitted). This requirement was codified in N.C. R. App. P 28(b)(4), which states in pertinent part that an appellant\u2019s brief must include:\nA statement of the grounds for appellate review. Such statement shall include citation of the statute or statutes permitting appellate review. . . . When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\nIn the instant case, Defendant simply states that because a \u201cthreshold issue at the preliminary hearing was whether there had been a taking by NCDOT\u201d the trial court\u2019s \u201cruling clearly affected a substantial right.\u201d However, Defendant fails to identify what right is at issue or why any substantial right would be jeopardized without immediate review of the trial court\u2019s order. \u201cIt is well established in this jurisdiction that if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves.\u201d Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (citations omitted).\nWe conclude that Defendant has attempted to appeal from an interlocutory order without identifying any substantial right requiring immediate appeal. Accordingly, Defendant\u2019s appeal is premature and should be dismissed. We note that this Court is not dismissing Defendant\u2019s appeal as a sanction for a technical violation of Rule 28 of the North Carolina Rules of Appellate Procedure, but for its substantive failure to demonstrate any right to interlocutory appeal.\nAppeal Dismissed.\nJudge WYNN concurs in the result only.\nJudge BRYANT concurs.\nConcurred in prior to 31 December 2008.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "Cranfill Sumner & Hartzog, LLP, by George B. Autry, Jr., Brady W. Wells, and Stephanie H. Autry, for Plaintiffs.", "Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, Special Deputy Attorney General E. Burke Haywood, and Assistant Attorney General Thomas B. Wood, for Defendant." ], "corrections": "", "head_matter": "JAMES A. WILFONG, and wife, MARIA HERRERA, Plaintiffs v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant\nNo. COA08-400\n(Filed 6 January 2009)\nAppeal and Error\u2014 appealability \u2014 inverse condemnation hearing \u2014 interlocutory order \u2014 failure to demonstrate substantial right\n. Defendant DOT\u2019s appeal from an order finding it liable to plaintiffs for damages arising from defendant\u2019s inverse condemnation of plaintiffs\u2019 property is dismissed because: (1) defendant appealed from an interlocutory order entered following a hearing under N.C.G.S. \u00a7 136-108 since these hearings do not finally resolve all issues; and (2) defendant failed to identify what right was at issue or why any substantial right would be jeopardized without immediate review of the trial court\u2019s order. The appeal was not dismissed as a sanction for a technical violation of N.C. R. App. P. 28, but instead based on a substantive failure to demonstrate any right to an immediate appeal.\nAppeal by Defendant from order entered 31 December 2007 by Judge J.B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 21 October 2008.\nCranfill Sumner & Hartzog, LLP, by George B. Autry, Jr., Brady W. Wells, and Stephanie H. Autry, for Plaintiffs.\nAttorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, Special Deputy Attorney General E. Burke Haywood, and Assistant Attorney General Thomas B. Wood, for Defendant." }, "file_name": "0816-01", "first_page_order": 848, "last_page_order": 851 }