{ "id": 4233757, "name": "TOWN OF APEX, Plaintiff v. ANN SLOAN WHITEHURST, INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; ROBERTA SLOAN LITTLE; INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; MEREDITH LYNN WHITEHURST; SHELLEY ANN WHITEHURST; STEPHEN B. LITTLE; DAVID K. WHITEHURST; and WAKE County, Defendants", "name_abbreviation": "Town of Apex v. Whitehurst", "decision_date": "2011-07-19", "docket_number": "No. COA10-697", "first_page": "579", "last_page": "586", "citations": [ { "type": "official", "cite": "213 N.C. App. 579" } ], "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": "672 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642783 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "723" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0721-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "365", "parenthetical": "explaining that failure to comply with Rule 3 of the North Carolina Rules of Appellate Procedure results in a jurisdictional default which requires this Court to dismiss the appeal and even precludes review pursuant to North Carolina Rule of Appellate Procedure 2" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "640 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637777 ], "weight": 12, "year": 2007, "pin_cites": [ { "page": "858", "parenthetical": "citation and quotation marks omitted" }, { "page": "858-59", "parenthetical": "citation, quotation marks, and ellipses omitted" }, { "page": "858" }, { "page": "858" }, { "page": "858-59" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0856-01" ] }, { "cite": "195 N.C. App. 417", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165027 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0417-01" ] }, { "cite": "697 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "528 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094371 ], "year": 2000, "pin_cites": [ { "page": "515-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0511-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "197-98" }, { "page": "197-98" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "517 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "158-59", "parenthetical": "noting defendant was \"precluded from raising ... issue on appeal\" because defendant failed to appeal within 30 days of interlocutory order which determined that a taking had occurred and affected a substantial right" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143061 ], "year": 1999, "pin_cites": [ { "page": "96-97", "parenthetical": "noting defendant was \"precluded from raising ... issue on appeal\" because defendant failed to appeal within 30 days of interlocutory order which determined that a taking had occurred and affected a substantial right" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0091-01" ] }, { "cite": "545 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8209431 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "477-78", "parenthetical": "footnote omitted" }, { "page": "450", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/us/545/0469-01" ] }, { "cite": "57 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "819", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "231 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630552 ], "year": 1950, "pin_cites": [ { "page": "484", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0481-01" ] }, { "cite": "155 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "271 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562278 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0001-01" ] }, { "cite": "181 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375662 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "612", "parenthetical": "citation and quotation marks omitted" }, { "page": "612-13" }, { "page": "612" }, { "page": "613" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0610-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "\"motion for determination\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 743, "char_count": 17611, "ocr_confidence": 0.74, "pagerank": { "raw": 6.744307026113774e-08, "percentile": 0.4087695846360155 }, "sha256": "5c184cca4fcae0ae278472c78db8a43634c34d266badaf2835f723525db19fae", "simhash": "1:b9396f3c34ae3c90", "word_count": 2902 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and BEASLEY concur in result only." ], "parties": [ "TOWN OF APEX, Plaintiff v. ANN SLOAN WHITEHURST, INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; ROBERTA SLOAN LITTLE; INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; MEREDITH LYNN WHITEHURST; SHELLEY ANN WHITEHURST; STEPHEN B. LITTLE; DAVID K. WHITEHURST; and WAKE County, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nDefendants appeal three orders regarding the condemnation of their land. As defendants\u2019 appeal is untimely, we dismiss the appeal.\nI. Background\nPlaintiff, the Town of Apex (\u201cApex\u201d), brought this condemnation action pursuant to \u201cArticle 9 of Chapter 136 of the North Carolina General Statutes\u201d because it was \u201cnecessary to condemn and appropriate\u201d the property of defendants \u201cfor public use in the construction of a certain gravity sewer line project[.]\u201d The parties were \u201cunable to agree as to the purchase price of the property... appropriated^]\u201d and thus Apex requested the Court to determine \u201cjust compensation for the appropriation[.]\u201d\nOn or about 25 July 2008, defendants moved to dismiss Apex\u2019s complaint, answered Apex\u2019s complaint, and counterclaimed for a declaration that Apex\u2019s taking would result \u201cin a total taking of the property and that an inverse condemnation ha[d] occurred.\u201d Defendants claimed the taking would \u201cdestroy the use and effect of the entire property\u201d because\n[t]he Plaintiff\u2019s efforts to plant sewer lines across the Defendants!\u2019] property will harvest an artificial, barren ridge across the Defendants\u2019] otherwise pristine forest and thus destroy the natural effect of a Sylvan refuge and thus damage the natural effect of the entire tract.\n4. Because the plans of the Plaintiff to take only a portion of the Defendants\u2019 property will result in an un-desired subdivision of an otherwise untouched forest, the Plaintiff\u2019s actions will result in a total taking of the Defendants!\u2019] property.\nDefendants requested \u201cdamages for taking the entire property.\u201d On or about 21 August 2008, Apex answered defendants\u2019 counterclaim, moved to dismiss defendants\u2019 counterclaim, \u201crequested a hearing to determine all iss\u00fces other than just compensation!,]\u201d and argued that defendants\u2019 counterclaim was barred by laches.\nOn 21 October 2008, defendants filed an amended motion for summary judgment based on \u201cwhether this condemnation action is for a public purpose.\u201d On 10 February 2009, the trial court entered an order allowing Apex\u2019s motion for summary judgment and denying defendant\u2019s motion for summary judgment because Apex\u2019s \u201cintended use of the property at issue satisfies both the \u2018public use\u2019 and the \u2018public benefit\u2019 testsf.]\u201d On 19 November 2009, the trial court granted Apex\u2019s motion to dismiss defendants\u2019 counterclaim.\nOn 22 June 2010, Apex filed a \u201cMOTION FOR DETERMINATION OF ISSUES OTHER THAN DAMAGES\u201d pursuant to N.C. Gen. Stat. \u00a7 136-108 (\u201cmotion for determination\u201d) requesting the trial court to. determine:\na. Whether or not the Town of Apex\u2019s easement, as set forth in its Complaint, constitutes a taking of the entire tract; and\nb. Whether or not the jury shall hear and determine the claims for compensation made by the Defendants because of the taking.\nOn 17 February 2010, after a hearing regarding Apex\u2019s motion for determination, the trial court determined that Apex had \u201ccondemned an easement constituting a partial taking];]\u201d thus rejecting defendants\u2019 claim that the easement would in eff\u00e9ct take the entire property as alleged by defendants\u2019 dismissed counterclaim for inverse condemnation. Defendants appeal the 10 February 2009 order, the 19 November 2009 order, and the 17 February 2010 order.\nII. 10 February 2009 Order\nDefendants\u2019 first two arguments are that Apex\u2019s condemnation was actually for private use, not public use. The trial court\u2019s initial determination that the condemnation was for public use was made in the 10 February 2009 order.\nAccording to Progress Energy Carolinas, Inc. v. Strickland,\n[w]e first consider whether [the] appeal in this case is an interlocutory appeal requiring dismissal. A ruling is interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree.\n181 N.C. App. 610, 612, 640 S.E.2d 856, 858 (2007) (citation and quotation marks omitted). Here, the 10 February 2009 order determined that the purpose of the taking was for public use and left all other issues regarding the condemnation proceeding pending; accordingly, the 10 February 2009 order was interlocutory. See id.\nThere is generally no right to appeal an interlocutory order. However, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. The Supreme Court recognized in N.C. State Highway Comm\u2019n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967) 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. \u00a7 1-277, which permits interlocutory appeals of determinations affecting substantial rights.\nThe Supreme Court defined the concept of vital preliminary issues in two eminent domain cases, Nuckles and Rowe. The issue before the Court in Nuckles was which tracts the State Highway Commission was taking by eminent domain. When considering whether this was a vital preliminary issue, the Court noted:\nObviously, it would be an exercise in futility to have the jury assess damages to tracts 1, 2, 3, and 4 if plaintiff were condemning only tracts A and B, and the verdict would be set aside on appeal for errors committed by the judge in determining the issues other than damages.\nBy contrast, in Rowe the landowners appealed the issue of the unification of four of their tracts through condemnation. The Court noted: Defendants contest only the unification of the four remaining tracts, not what parcel of land is being taken or to whom that land belongs. Thus, we hold that the trial court\u2019s interlocutory order does not affect any substantial right of these defendants. The Court went on to limit the Nuckles holding to questions of title and area taken.\nApplying this vital preliminary issue analysis to the case before us, the order is immediately appealable if it decided questions of title or area taken.\nId. at 612-13, 640 S.E.2d at 858-59 (citation, quotation marks, and ellipses omitted).\nWe are unaware of any prior North Carolina case which has considered whether the issue of the purpose of a taking is a vital or non-vital \u201cpreliminary issue[.]\u201d Id. While Progress Energy Carolinas notes that Rowe limited Nuckles \u201cto questions of title and area taken[,]\u201d we note \u201cquestions of title and area taken\u201d are possible only after a taking has occurred. See id. In other words, once a condemnor files a condemnation action which creates a taking, the trial court must consider the extent of the taking, including issues such as the title and the specific area involved, before a jury may determine compensation for the taking. We are confronted here with the preliminary issue of whether a taking has even occurred, since Apex has no power to condemn property for a private purpose or use.\n\u201c[T]aking\u201d under the power of eminent domain may be defined as entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.\nPenn v. Coastal Corp., 231 N.C. 481, 484, 57 S.E.2d 817, 819 (1950) (emphasis added) (citation and quotation marks omitted). By its very definition, a \u201ctaking\u201d can only occur if an entity with the power of eminent domain appropriates property which is to be devoted \u201cto a public use[.]\u201d Id.\n[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future \u201cuse by the public\u201d is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example ....\n. . . [T]he City would no doubt be forbidden from taking petitioners\u2019 land for the purpose of conferring a private benefit on a particular private party. Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.\nKelo v. New London, 545 U.S. 469, 477-78, 162 L. Ed. 2d 439, 450 (2005) (footnote omitted). If Apex attempted to condemn the defendants\u2019 property for a private use, then the use would be improper and Apex would have no authority to take the property under the power of eminent domain, thus ending the inquiry. See id. But if Apex condemned defendants\u2019 property for public use, this would be an appropriate exercise of its power of eminent domain, and thus a \u201ctaking,\u201d see id., so that other issues, such as title or area taken, could then be addressed in order to determine the extent of the taking before compensation is considered. Accordingly, whether Apex is appropriating the property for private or public use is of vital importance as it determines whether Apex may exercise its power of eminent domain. See id.\nAs we have concluded that the determination of whether a taking is for a public purpose is an inquiry of vital importance in condemnation cases, such questions affect a substantial right and are immediately appealable. See Progress Energy Carolinas, 181 N.C. App. at 612-13, 640 S.E.2d at 858. As such, appeal must be filed within 30 days of entry of the order which determines the purpose of the taking. See N.C.R. App. P. 3(c)(1).\nIn civil actions and special proceedings, a party must file and serve a notice of appeal:\n(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure^]\nId.\nThe \u201cCertificate of Service\u201d signed by the Deputy Clerk of Superior Court, Nancy H. Vann, states that a copy of the 10 February 2009 order was deposited in the mail on 11 February 2009. Defendants did not file a notice of appeal from the 10 February 2009 order until 2 March 2010; accordingly, defendants\u2019 appeal is untimely, see id., and thus we dismiss any review of the 10 February 2009 order. See Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 96-97, 517 S.E.2d 155, 158-59 (1999) (noting defendant was \u201cprecluded from raising ... issue on appeal\u201d because defendant failed to appeal within 30 days of interlocutory order which determined that a taking had occurred and affected a substantial right); see also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657 S.E.2d 361, 365 (2008) (explaining that failure to comply with Rule 3 of the North Carolina Rules of Appellate Procedure results in a jurisdictional default which requires this Court to dismiss the appeal and even precludes review pursuant to North Carolina Rule of Appellate Procedure 2).\nIII. 19 November 2009 Order\nAlthough we have dismissed defendants\u2019 appeal as to the issue of taking for a public purpose, the 19 November 2009 order raises a different issue. Defendants\u2019 next two arguments are that the trial court erred in dismissing their counterclaim for inverse condemnation which was based upon defendants\u2019 allegation that the taking of the sewer easement created a total taking of the defendants\u2019 property. The 19 November 2009 order is also interlocutory as it does not dispose of all of the issues before the trial court. Progress Energy Carolinas, 181 N.C. App. at 612, 640 S.E.2d at 858.\nThe question of whether the taking was total or partial is a vital issue as it deals with the extent of the taking, i.e., the \u201carea taken[.]\u201d Id., 181 N.C. App. at 613, 640 S.E.2d at 858-59; compare Dep\u2019t of Transp. v. Mahaffey, 137 N.C. App. 511, 515-16, 528 S.E.2d 381, 384 (2000) (determining that where the defendants\u2019 inverse condemnation claim was based upon the issue of whether \u201cthey had... been offered just compensation for the alleged taking of their property\u201d ... it \u201cdid not relate to title or area taken[, and] . . . thus, [the defendants] are not barred from raising these issues in this appeal\u201d (quotation marks omitted)). As defendants\u2019 appeal relates to the \u201carea taken[,]\u201d the 19 November 2009 order was also immediately appealable. See Progress Energy Carolinas, 181 N.C. App. at 613, 640 S.E.2d at 859. \u201c[I]t would be an exercise in futilityf,]\u201d Highway Comm\u2019n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967), for a jury to consider evidence as to the value of the taking of only a 30 foot wide sewer easement crossing the defendants\u2019 real property instead of evidence as to the value of the taking of the entire tract of approximately 48 acres, if in fact Apex had appropriated the entire tract.\nThe \u201cCertificate of Service\u201d for the 19 November 2009 order, also signed by the Deputy Clerk of Superior Court, Nancy H. Vann, states that a copy of the order was deposited in the mail on 19 November 2009. Defendant\u2019s notice of appeal was not filed until 2 March 2010. Accordingly, defendant\u2019s appeal as to the 19 November 2009 order is untimely, see N.C.R. App. R 3(c)(1) and we must dismiss it. See Dogwood Dev. & Mgmt. Co, 362 N.C. at 197-98, 657 S.E.2d 361, 365.\nIV. 17 February 2010 Order\nDefendants failed to make any arguments regarding the 17 February 2010 order. Accordingly, we will not review this order. See N.C.R. App. R 28(a) (\u201cThe scope of review on appeal is limited to issues so presented in the several briefs. Issues not presented and discussed in a party\u2019s brief are deemed abandoned.\u201d)\nV. Conclusion\nAs defendants failed to make a timely appeal, we dismiss this appeal.\nDISMISSED.\nJudges BRYANT and BEASLEY concur in result only.\n. Apex\u2019s brief notes that \u201c[t]he Town has the option to exercise its condemnation power under N.C. Gen. Stat. \u00a7 40A-3 [App. pp. 4-9], which grants such authority to \u2018local public condemnors.\u2019 Id. See also N.C. Gen. Stat. \u00a7 40A-4(a) [App. p. 3]. By virtue of an amendment to its charter in 1987 by the General Assembly, S.L. 1987-70 [App. p. 23], codified as amended as \u00a7 6.5 of the Apex Town Charter [App. p. 22], the Town may also exercise such power under Chapter 136, Article 9. The Town instituted this action under Chapter 136. (R p 12). Defendant-appellants have not challenged the Town\u2019s authority to proceed under Chapter 136.\u201d\n. We note that defendants\u2019 counterclaim for inverse condemnation was not filed in accordance with N.C. Gen. Stat. \u00a7 136-111, as defendants failed to allege a claim under N.C. Gen. Stat. \u00a7 136-111 or to file a memorandum of action and would be subject to dismissal for this reason alone. See generally Cape Fear Pub. Util. Auth. v. Costa, \u2014N.C. App. \u2014, 697 S.E.2d 338, 342 (2010) (\u201cAlthough [the] Defendant alleged in his counterclaim that he \u2018specifically pleads the law of Inverse Condemnation,\u2019 he completely-failed to comply with the requirements of N.C. Gen. Stat. \u00a7 40A-51, both in the allegations of the counterclaim and by his failure to file a memorandum of action. . . . Defendant's counterclaim for inverse condemnation was thus subject to dismissal for its failure to comply with N.C. Gen. Stat. \u00a7 40A-51.\u201d (brackets omitted)). However, we do not address defendants\u2019 appeal regarding their counterclaim for inverse condemnation as we conclude that it was untimely.\n. Apex made an oral motion for summary judgment before the trial court at the hearing on defendants\u2019 motion for summary judgment.\n. This case is distinguishable from DeHart v. N.C. Dep\u2019t. of Transp., 195 N.C. App. 417, 420, 672 S.E.2d 721, 723 (2009) which provided that \u201c[t]he sole question was whether there was any taking at all\u201d because in Dehart \u201c[t]he parties reached a compromise settlement with regard to DOT\u2019S taking[.]\u201d See id. at 418, 672 S.E.2d at 722. Accordingly in Dehart, the parties had previously agreed that there had been a taking. See id. The issue actually addressed in Dehart was the DOT\u2019s alleged failure to comply with the compromise settlement. See id., 195 N.C. App. 417, 672 S.E.2d 721.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Smith Moore Leatherwood LLP, by Marc C. Tucker, for the plaintiff-appellee.", "Creech Law Firm, P.A., by Peter J. Sarda, for the defendant-appellants." ], "corrections": "", "head_matter": "TOWN OF APEX, Plaintiff v. ANN SLOAN WHITEHURST, INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; ROBERTA SLOAN LITTLE; INDIVIDUALLY, AS CO-EXECUTRIX OF THE ESTATE OF BEULAH CORBETT SLOAN AND AS TRUSTEE; MEREDITH LYNN WHITEHURST; SHELLEY ANN WHITEHURST; STEPHEN B. LITTLE; DAVID K. WHITEHURST; and WAKE County, Defendants\nNo. COA10-697\n(Filed 19 July 2011)\n1. Appeal and Error\u2014 interlocutory orders and appeals \u2014 substantial right \u2014 taking for public purpose \u2014 untimely appeal\nAlthough defendants\u2019 appeal in a condemnation case regarding the issue of taking for a public purpose was from an interlocutory order that affected a substantial right, it was dismissed as untimely.\n2. Appeal and Error\u2014 interlocutory orders and appeals \u2014 substantial right \u2014 inverse condemnation \u2014 untimely appeal\nAlthough defendants\u2019 counterclaim for inverse condemnation was from an interlocutory order that affected a substantial right, it was dismissed as untimely.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nDefendants failed to make any arguments regarding the 17 February 2010 order as required by N.C. R. App. P. 28(a), and thus, the issues were deemed abandoned.\nAppeal by defendants from orders entered 10 February 2009 by Judge Ripley E. Rand, 19 November 2009 by Abraham Penn Jones, and 17 February 2010 by Judge Donald W. Stephens in Superior Court, Wake County. Heard in the Court of Appeals 30 November 2010.\nSmith Moore Leatherwood LLP, by Marc C. Tucker, for the plaintiff-appellee.\nCreech Law Firm, P.A., by Peter J. Sarda, for the defendant-appellants." }, "file_name": "0579-01", "first_page_order": 589, "last_page_order": 596 }