IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-390
Filed 5 December 2023
Caldwell County, No. 19CVS1560
SASHA ROSE ELLIOTT and JEREMY LEE OACHS, Plaintiffs,
v.
DEPARTMENT OF TRANSPORTATION, Defendant.
Appeal by plaintiffs from order entered 9 January 2022 by Judge Jacqueline D.
Grant in Caldwell County Superior Court. Heard in the Court of Appeals 1 November
2023.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Andrew J. Howell, for the
plaintiff-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew
Baptiste Holloway, for the defendant-appellee.
TYSON, Judge.
Sasha Rose Elliott and Jeremy Lee Oachs (collectively “Plaintiffs”) appeal from
an order entered concluding: inter alia, (1) the Department of Transportation (“DOT”)
had not taken a compensable interest in Plaintiffs’ property through inverse
condemnation; (2) Plaintiffs were not entitled to any compensation from DOT; and (3)
dismissing Plaintiffs’ claims. We affirm.
I. Background
Plaintiffs acquired a parcel of real property located at 6149 Laytown Road in
ELLIOTT V. DEP’T OF TRANSP.
Opinion of the Court
Lenoir in July 2018. The parcel measures approximately 38.96 acres and contains
Plaintiffs’ single-family dwelling. Plaintiffs have lived on the property with their
children since acquiring the parcel. The parcel is accessed through a gravel driveway,
which rises and runs up a slope with a stream running along the base of the slope.
DOT acquired a new right-of-way to convert Laytown Road from a dirt road
into a two-lane paved highway. This right-of-way extends into and through where
Plaintiffs’ driveway connects to Laytown Road. DOT’s agreement with Plaintiffs’
predecessors-in-title released DOT from all claims of damages by reason of acquiring
and improving said right-of-way.
Sometime before 2017, a prior landowner, without involvement or help from
DOT, installed eight concrete blocks directly on top of a slope on the driveway. Each
of these blocks weighed an average of 3,600 lbs. Between 2017 and 2018, at the
request of a prior owner, DOT installed gabion baskets filled with earth or rocks to
support the abutment between Laytown Road and the driveway. The baskets were
not located on the slope that later failed.
Plaintiffs noticed cracking and an opening in the ground at the connection of
the driveway with Laytown Road. DOT performed maintenance work on a culvert
near the driveway and placed large stone riprap on the fill side of the embankment
beside the driveway in March 2019.
A three-day continuous rain event (“rain event”) caused the slope of the
driveway to collapse in June 2019 and rendered Plaintiffs’ driveway unusable.
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Several other slides occurred on Laytown Road during the rain event. A significant
portion of Plaintiffs’ driveway collapsed down the fill side of the embankment on 8
June 2019.
Plaintiffs filed a complaint demanding a jury trial and alleged inverse
condemnation by DOT on 26 November 2019. DOT filed an answer, a motion to
dismiss, and a motion for a hearing pursuant to N.C. Gen. Stat. § 136-108 (2021) to
determine all issues other than damages.
Following hearings on 12 July 2022 and 30 September 2022 without a jury, the
trial court entered an order concluding DOT had not taken a compensable interest in
Plaintiffs’ property and Plaintiffs were not entitled to any compensation. The court
dismissed Plaintiffs’ complaint. Plaintiffs appeal.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
III. Issues
Plaintiffs argue the trial court erred by: (1) concluding Plaintiffs’ expert
testimony was not supported by sufficient facts or data; (2) giving weight to DOT’s
witnesses, who did not offer credible evidence; and (3) eliminating their access to
Laytown Road. Plaintiffs do not assert or argue any error from the trial court
conducting the hearings and making findings without submitting disputed facts and
evidence to resolution by a jury.
IV. Standard of Review
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“[W]hen the trial court sits without a jury, the standard of review on appeal is
whether . . . competent evidence support[s] the trial court’s findings of fact and
whether the conclusions of law were proper in light of such facts.” Anthony Marano
Co. v. Jones, 165 N.C. App. 266, 267-68, 598 S.E.2d 393, 395 (2004) (citation omitted).
Unchallenged findings of fact are binding upon appeal. Lab. Corp. of Am. Holdings
v. Caccuro, 212 N.C. App. 564, 567, 712 S.E.2d 696, 699 (2011). “The trial court’s
conclusions of law are reviewed de novo[.]” Strikeleather Realty & Invs. Co. v.
Broadway, 241 N.C. App. 152, 160, 772 S.E.2d 107, 113 (2015) (citation and quotation
marks omitted).
V. Inverse Condemnation
Inverse condemnation actions are governed by N.C. Gen. Stat. § 136-111. “Any
person whose land or compensable interest therein has been taken by an intentional
or unintentional act or omission of the Department of Transportation and no
complaint and declaration of taking has been filed by said Department of
Transportation may . . . file a complaint in the superior court[.]” N.C. Gen. Stat. §
136-111 (2021).
A taking under the power of eminent domain may be defined generally as an
“entering upon private property for more than a momentary period and, under the
warrant . . . 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.” Ledford v. Highway
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Comm., 279 N.C. 188, 190–91, 181 S.E.2d 466, 468 (1971). North Carolina courts and
precedents recognize “[d]amage to land which inevitably or necessarily flows from a
public construction project results in an appropriation of land for public use.”
Robinson v. N.C. Dept. of Transportation, 89 N.C. App. 572, 574, 366 S.E.2d 492, 493
(1988) (citing City of Winston–Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794
(1986)).
Our Supreme Court has held: “[p]arties to a condemnation proceeding must
resolve all issues other than damages at a hearing pursuant to N.C.[Gen. Stat.] § 136-
108.” Dep’t of Transp. v. Rowe, 351 N.C. 172, 175, 521 S.E.2d 707, 709 (1999). N.C.
Gen. Stat. § 136-108 provides:
After the filing of the plat, the judge, upon motion and 10
days’ notice by either the Department of Transportation or
the owner, shall, either in or out of term, hear and
determine any and all issues raised by the pleadings other
than the issue of damages, including, but not limited to, if
controverted, questions of necessary and proper parties,
title to the land, interest taken, and area taken.
N.C. Gen. Stat. § 136-108 (2021). N.C. Gen. Stat. § 136-108 applies to both inverse
and traditional condemnations. DeHart v. N.C. Dep’t of Transp., 195 N.C. App. 417,
419, 672 S.E.2d 721, 722 (2008) (“DOT then moved for a hearing pursuant to N.C.
Gen. Stat. § 136-108 (2007) to determine ‘whether the Plaintiffs have had any interest
or area of their property taken by the Defendant and/or whether the Plaintiffs have
an inverse condemnation claim against the Defendant.’”).
VI. Plaintiffs’ Expert Testimony
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Plaintiffs argue the trial court erred in finding their expert, Jeffrey Brown’s,
testimony was not credible. Plaintiffs seek for this Court to re-weigh the evidence
presented before the trial court. “The trial court must determine what pertinent facts
are actually established by the evidence before it, and it is not for an appellate court
to determine de novo the weight and credibility to be given to evidence disclosed by
the record on appeal.” Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189
(1980) (citations omitted). Competent evidence supports the trial court’s
unchallenged and binding findings and conclusions about credibility and weight
accorded to the competing experts. Plaintiffs’ argument is overruled.
VII. DOT Witnesses
Plaintiffs argue the trial court improperly credited DOT’s witness testimony.
As established above, the “trial court must determine what pertinent facts are
actually established by the evidence before it,” and it is not our role as an appellate
court to reweigh the evidence. Id. at 712, 268 S.E.2d at 189.
It is the injured party’s burden at trial to establish their injury was sustained
by the action of the opposing party. See Board of Education v. McMillan, 250 N.C.
485, 489, 108 S.E.2d 895, 898 (1959) (holding that the injured party has the burden
of the issue on damages and must convince the jury by a greater weight of evidence
that he has been damaged.).
This burden applies to cases dealing with an overflow of water damaging a
landowner’s property. Lea Co. v. N.C. Board of Transportation, 308 N.C. 603, 614,
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304 S.E.2d 164, 172 (1983) (holding that in order to recover for damages, the plaintiff
had to show how the increased overflow of water was “such as was reasonably to have
been anticipated by the State to be the direct result of the structures it built and
maintained” (citation omitted)). Plaintiffs must show it was reasonably foreseeable
for the State to anticipate the change in water movement at the time it undertook to
erect a structure. Id. Plaintiffs’ argument is overruled.
VIII. Plaintiffs Access to Laytown Road
Plaintiffs argue the trial court erred by denying their access to Laytown Road
without just compensation. Our statutes and precedents have long established “[a]n
owner of land abutting a highway or street has the right of direct access from his
property to the traffic lanes of the highway.” Dept. of Transportation v. Harkey, 308
N.C. 148, 151, 301 S.E.2d 64, 67 (1983); see N.C. Gen. Stat. § 136-89.53 (2021) (“When
an existing street or highway shall be designated as and included within a controlled-
access facility the owners of land abutting such existing street or highway shall be
entitled to compensation for the taking of or injury to their easements of access.”).
The State may not diminish, deprive, or take away this right away without just
compensation to the property owner. Harkey, 308 N.C. at 151, 301 S.E.2d at 67.
Governmental action eliminating all direct access to an abutting road is a
taking and compensable as a matter of law. Id. at 158, 301 S.E.2d at 71. Even if the
State’s actions do not eliminate all direct access, a landowner may be entitled to
compensation if his common law and statutory rights of access are substantially
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Opinion of the Court
interfered with by the State. Highway Comm. v. Yarborough, 6 N.C. App. 294, 302,
170 S.E.2d 159, 165 (1969).
Competent evidence supports the trial court’s findings and conclusion the
collapse of Plaintiffs’ slope and driveway was not caused by or a result of DOT actions.
Plaintiffs’ failed to show DOT’s actions denied Plaintiff of their physical and lawful
access to Laytown Road. Plaintiffs’ argument is overruled.
IX. Conclusion
Plaintiffs do not appeal nor argue the hearings were conducted and expert
testimony and factual disputes on damages incurred were presented before the trial
court without a jury as was demanded in their complaint. The evidence, taken as a
whole, is competent to support the trial court’s findings of fact that the DOT’s experts’
testimonies were more persuasive than Plaintiffs’ expert witness. These findings
support the trial court’s conclusions of law. The order of the trial court is affirmed.
It is so ordered.
AFFIRMED.
Judges MURPHY and COLLINS concur.
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