BRYANT, Judge.
Where the issue before the trial court was whether increased traffic flow on a private road taken for public use was a compensable damage subject to determination by jury, it was proper for the trial court to conduct a section 108 hearing. Where the trial court determined that the area taken by DOT did not include a subsequent driveway permit and related effects of that permit, we affirm the trial court order excluding evidence of such driveway permit and effects at a subsequent trial on damages.
In 2007, the Department of Transportation ("DOT") was involved in a highway construction project in Mooresville, North Carolina known as the "Brawley School Road widening project". DOT condemned and took through eminent domain a 0.67 acre strip of land owned by defendants Ray and Dorothy Webster ("defendants") after DOT and defendants were unable to agree on a purchase price for the property. The strip of land was taken from a portion of a 20-foot-wide private road known as Rescue Lane that intersected with Brawley School Road. Brawley School Road had been an undivided two-lane
Sometime before the commencement of the DOT project, defendants, fee simple owners of 32.93 acres of land adjacent to Brawley School Road, had dedicated the right of way of Rescue Lane to private use. Adjacent to defendants' property, also bordered by Rescue Lane and Brawley School Road, was Brawley Market, a commercial development owned by Southern Properties, LLC. Following DOT's expansion of Brawley School Road and the construction of medians separating east and westbound traffic, drivers entering and exiting Brawley Market directly from and onto Brawley School Road were limited to traveling west. To travel east on Brawley School Road, drivers exiting Brawley Market had to travel west and then make a u-turn at an available median break.
Once defendants' property was condemned, a portion of Rescue Lane became a public roadway, maintained by DOT. On 26 February 2008, Southern Properties applied to DOT for a driveway permit to access Rescue Lane. Because of a break in the median at the intersection of Rescue Lane and Brawley School Road, traffic could enter and exit Rescue Lane onto Brawley School Road from or to the east and west. DOT approved Southern Properties' application in March 2009, eighteen months after the taking of defendants' property.
On or about 21 March 2012, DOT filed a motion for hearing pursuant to North Carolina General Statutes, section 136-108 requesting a determination of any and all issues raised by the pleadings other than the issue of damages, along with a memorandum in support of the motion for hearing. In its motion, DOT urged:
On 27 March 2012, defendants filed an objection and motion to dismiss plaintiff's motion for a section 108 hearing and, alternatively, motion to continue the hearing. On 12 April 2012, the trial court entered an order granting defendants' motion to continue the hearing.
A section 108 hearing was held during the 25 June 2012 Civil Session of Iredell County Superior Court, the Honorable Joseph N. Crosswhite presiding. On 8 August 2012, the trial court entered its order finding and concluding that the grant of Southern Properties' driveway permit application was a function of DOT's police power as a State agency. Any effects of the permit, including the impact of an increase in traffic along defendants' property as a result of the adjacent driveway from Brawley Market, did not constitute a taking or result in compensable damages. The trial court ordered that evidence of the driveway permit and its effects "shall not be included as elements of damage at the trial of this matter." Defendants appeal.
On appeal, defendants raise the following issues: whether the trial court erred (I) in overruling defendants' objection and motion to dismiss the section 108 hearing; and (II) in excluding evidence and arguments regarding increased traffic on Rescue Lane at the trial of this action.
"An 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." Edwards v. GE Lighting Sys., Inc., 193 N.C. App. 578, 581, 668 S.E.2d 114, 116 (2008) (citation and quotations omitted); see also N.C. Gen.Stat. § 1A-1, Rule 54(b) (2011). "Generally, there is no right of immediate appeal from interlocutory orders and
N.C. State Highway Comm'n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967).
Defendants appeal from the trial court order ruling on a question of whether increased traffic flow on a private road taken for public use was a compensable damage subject to a jury's determination. We grant defendant's review of this order. See id.
Defendants argue that the matters raised by DOT in the section 108 hearing related solely to the issue of damages and thus, were outside the scope of the purpose of a section 108 hearing. Therefore, defendants contend the trial court erred in failing to dismiss DOT's motion for the section 108 hearing. We disagree.
Defendants begin their argument by asserting that the trial court failed to rule on their motion to dismiss DOT's motion for a section 108 hearing. We note that generally, the failure to obtain a ruling on a motion presented to a trial court renders the argument raised in the motion unpreserved on appeal. See N.C.R.App. P. 10(a)(1) (2012) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make.... It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion."). Therefore, we first consider whether this issue is properly before this Court.
On 26 March 2012, defendants filed an objection and motion to dismiss or alternatively, motion to continue hearing on DOT's motion for a section 108 hearing. Defendants listed the following as grounds for objection:
On 20 April 2012, the trial court entered an order continuing the section 108 hearing, noting that "Defendants have shown good cause to continue this matter...." A section 108 hearing was conducted during the 25 June 2012 civil session of Iredell County Superior Court.
In its order entered 8 August 2012, in a sub-section entitled "Hearing Pursuant to N.C. Gen.Stat. § 136-108," the trial court stated the following:
(emphasis added). Thus, the trial court ruled on defendants' objection to DOT's motion for a section 108 hearing. Therefore, the arguments defendants presented to the trial court were preserved, and this issue is properly before this Court.
It is the trial court's function at a section 108 hearing "to decide all questions of fact." N.C. State Highway Comm'n v. Farm Equip. Co., 281 N.C. 459, 467, 189 S.E.2d 272, 277 (1972). "In cases where the trial judge sits as the trier of facts, he is required to (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising on the facts found; and (3) enter judgment accordingly." Gilbert Eng'g Co. v. Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 857 (1985) (citations omitted).
Pursuant to North Carolina General Statutes, section 136-108, "[a]fter the filing of the plat, the judge, upon motion ... by either the Department of Transportation or the owner, shall hear and determine any and all issues raised by the pleadings other than the issue of damages...." N.C. Gen.Stat. § 136-108 (emphasis added). As to the question presented in DOT's motion for a section 108 hearing, where DOT argues that it acted within the authority of its police power and that damage to defendants' property as a result is not compensable, the trial court has authority to rule on this issue pursuant to section 136-108. See id.; see also Nuckles, 271 N.C. 1, 155 S.E.2d 772 (holding that the trial court had authority to determine whether the interest was compensable). Moreover, as the arguments presented at the section 108 hearing raised the issue of whether defendants could present evidence on the damage to their property as a direct result of DOT's exercise of a police power and a taking, the trial court had authority to address this issue within a section 108 hearing. See Nuckles, 271 N.C. 1, 155 S.E.2d 772 (holding that it was proper for the trial court to decide the issue in question in a section 108 hearing, regardless of whether the issue was phrased as one of interference with a defendant's access to his property or a proper regulation by the DOT of traffic flow). Accordingly, we overrule defendants' argument that the trial court erred in failing to dismiss DOT's motion for a section 108 hearing.
Defendants next argue that the trial court erred in ordering that the evidence and arguments pertaining to increased traffic on Rescue Lane be excluded from the trial on compensation purportedly owed defendants due to DOT's expansion of Brawley School Road. We disagree.
"Unchallenged findings of fact are presumed correct and are binding on appeal." In re Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (citations omitted). Here, the trial court made the following unchallenged findings of fact:
The trial court then entered the following pertinent conclusions of law:
Defendants contend that the trial court erred in not considering the effects of increased traffic on Rescue Lane. Although "[t]he state must compensate for property rights taken by eminent domain[,] damages resulting from the exercise of the police power are noncompensable." Barnes v. N.C. State Highway Comm'n, 257 N.C. 507, 514, 126 S.E.2d 732, 738 (1962) (citations and quotations omitted).
Pursuant to North Carolina General Statutes, section 136-18, DOT is vested with the power "[t]o make rules, regulations and ordinances for the use of, and to police traffic on, the State highways...." N.C. Gen.Stat. § 136-18(5) (2011). DOT is also vested with specific authority to pave driveways. See id. § 136-18(24) ("The [DOT] is further authorized to pave driveways leading from state-maintained roads to rural fire district firehouses which are approved by the North Carolina Fire Insurance Rating Bureau and to facilities of rescue squads furnishing ambulance services which are approved by the North Carolina State Association of Rescue Squads, Inc."). Further, "[n]o opening or other interference whatsoever shall be made in any State road or highway ... except in accordance with a written permit from [DOT]...." Id. § 136-93; see also Haymore v. N.C. State Highway Comm'n, 14 N.C. App. 691, 695, 189 S.E.2d 611, 614-15 (1972) ("[T]he Commission requires driveway permits for the purpose of assuring that a proposed driveway will be constructed in a safe manner and so as not to endanger travel upon the highway. This is an exercise of the general police power....").
State Highway Comm'n v. Yarborough, 6 N.C. App. 294, 301, 170 S.E.2d 159, 164 (1969) (citations omitted).
DOT cites Barnes in support of its position that the exercise of its police power is noncompensable. See Barnes, 257 N.C. at 514, 126 S.E.2d at 737-38. In Barnes, the petitioner raised the question of whether he was entitled to compensation from the State for diminution in value of his commercial property due to the construction of medians in a highway adjacent to his businesses. The construction of the highway medians limited access to his businesses — a filling station, a bulk oil premises, and Frozen Custard Place — to the highway's southbound lanes. In addressing the petitioner's argument, our Supreme Court quoted the following regarding the petitioner's property rights:
Id. at 516, 126 S.E.2d at 738-39 (citation and quotations omitted). We acknowledge that there is a "significant distinction between `right of access' and `regulation of traffic flow.'" 4 NICHOLS ON EMINENT DOMAIN § 13.23[2] (Julius L. Sackman ed., 3d ed. 2012 (Matthew Bender)). Specifically, there is no right to compensation for increased traffic flow.
Barnes, 257 N.C. at 516, 126 S.E.2d at 739 (citation and quotations omitted); see also Nuckles, 271 N.C. at 22, 155 S.E.2d at 789("(A)n abutting property owner is not entitled to compensation because of the construction of a highway ... if he be afforded direct access by local traffic lanes. ... That access is provided by the service roads. These service roads are part of the highway system. They serve not only the petitioners but any member of the public who desires to use the same." (citation and internal quotations omitted)).
Here, the trial court made numerous findings of fact regarding DOT's granting of a driveway permit to Southern Properties. In its conclusions of law, the trial court held that the DOT's actions were "a legitimate exercise of police power, and any effects of the permit do not constitute a taking or compensable damages in this matter." See Barnes, 257 N.C. 507, 126 S.E.2d 732. As the trial court's findings of fact were supported by competent evidence and those findings supported its conclusions of law, we hold the trial court did not err in excluding evidence concerning increased traffic on Rescue Lane from defendants' trial over compensation purportedly owed to defendants by DOT. Accordingly, we overrule defendants' argument and affirm the trial court's order to exclude from a jury trial on damages evidence regarding the increase in traffic along Rescue Lane.
Affirmed.
Judges STEPHENS and DILLON concur.
