Opinion
No. 07-1167.
Filed April 1, 2008.
Pasquotank County No. 00CVS641.
Appeal by defendants from order entered 9 July 2007 by Judge Clifton W. Everett, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 31 March 2008.
Hornthal, Riley, Ellis Maland, L.L.P. by Donald I. McRee, Jr. and Benjamin M. Gallop, attorneys for plaintiff-appellee. Mary F. Jackson-Heard and Barbara B. Seaforth, defendants-appellants, pro se.
Where the pleadings in the case do not raise issues under the provisions of N.C. Gen. Stat. 40A-47, the trial court properly denied defendants' motion.
I. Factual and Procedural Background
On 11 September 2000, the Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina ("Commission") filed a verified Complaint, Declaration of Taking and Notice of Deposit initiating a condemnation proceeding with respect to a 4,012 square foot parcel of land owned by defendants, Mary F. Jackson-Heard and Barbara B. Seaforth ("defendants") in the Fairgrounds Community of Pasquotank County. In conjunction with the condemnation complaint, the Redevelopment Commission deposited $700.00 with the trial court as the estimated amount of just compensation.
On 15 November 2000, defendants filed their answer to the complaint admitting all but two of the allegations in the complaint. Defendants denied that $700.00 was just compensation for the taking and denied that the property was not subject to any liens or other encumbrances. On 19 November 2004, defendants filed a document captioned "Counterclaim" seeking to assert claims against the County of Pasquotank and the City of Elizabeth City. On 18 January 2005, the trial court allowed the Commission's motion to strike the counterclaim.
On 19 May 2006, more than five years after filing their answer, defendants filed a motion to amend their answer and to file a counterclaim. Along with these motions, defendants also filed a motion pursuant to N.C. Gen. Stat. § 40A-47 to determine all issues raised by the pleadings other than the issue of compensation. Following a hearing, the trial court entered an order dated 9 July 2007, denying defendants' motions. Defendants appeal.
II. Appellate Review
As an initial matter, we address defendants' assertion that their appeal is properly before this Court. We have previously held, and the Commission concedes that orders under N.C. Gen. Stat. § 40A-47 are immediately appealable. City of Winston-Salem v. Slate, ___ N.C. App. ___, ___, 647 S.E.2d 643, 646 (2007); see also Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 591, 572 S.E.2d 832, 834 (2002) (trial court's determination under N.C. Gen. Stat. § 40A-47 "affect[ed] a substantial right"). Accordingly, this appeal is properly before us.
III. Denial of Defendants' Motion
In their sole argument on appeal, defendants contend that the trial court erroneously denied their motion pursuant to N.C. Gen. Stat. § 40A-47 on the grounds that it failed to determine issues related to the ownership of certain alleys and streets adjacent to their property. We disagree.
N.C. Gen. Stat. § 40A-47 provides as follows:
The judge, upon motion and 10 days' notice by either the condemnor or the owner, shall, either in or out of session, hear and determine any and all issues raised by the pleadings other than the issue of compensation, including, but not limited to, the condemnor's authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken.
N.C. Gen. Stat. § 40A-47 (2007). This Court has recently clarified that this statute permits the trial court to resolve only those issues raised by the pleadings. City of Winston-Salem, ___ N.C. App. at ___, 647 S.E.2d at 647. Defendants are not entitled to have the trial court determine whether there is additional common property for which defendants are entitled to be compensated because defendants admitted in their answer that the property being taken was accurately described in the complaint. The only issue raised by the pleadings in this case arises from defendants' general denial that the property was not subject to any liens or other encumbrances. Consequently, this is the only issue that could be properly brought before the trial court by the defendants' § 40A-47 motion. Neither the defendants' motion nor the defendants' argument on appeal addresses this issue. Moreover, we are unable to determine what evidence on this issue, if any, was presented by defendants at the hearing, given that defendants have failed to include the transcript of the hearing in the record on appeal. Consequently, we conclude that defendants have failed to show that they properly raised or that the trial court failed to properly consider the issues raised in the pleadings pursuant to N.C. Gen. Stat. § 40A-47.
This argument is without merit.
Affirmed.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).