Town of Apex v. Beverly L. Rubin

Shiloh Daum

Shiloh Daum is an attorney with Sever-Storey, LLP, eminent domain lawyers representing landowners.

Case Link View Now
Opinion Filed Pending
Attorney for the Case Joan Davis Kenneth C. Haywood Matthew Nis Leerberg Troy D. Shelton
Amicus Brief Writers R. Susanne Todd Shiloh Daum
Court NC Supreme Court
Docket No. 410PA18-2 and 206PA21

The Town of Apex sought to condemn Rubin’s land for the purpose of installing a sewer line. The town commenced its condemnation action and began construction on the line, but the trial court held that there was no public purpose and therefore no right to take the property. The Court of Appeals affirmed this ruling, and the Supreme Court denied the town’s Petition for Discretionary Review. Thus, it is the established law of the case that the town had no right to take the land. While Rubin sought post-judgment relief in the original action, the town filed a separate action claiming it took the property by inverse condemnation, a doctrine which only exists for property owners to obtain fair compensation for condemnations, not as an alternative means for the government to take land. In any event, despite the prior ruling that there was no right of condemnation, Apex has simply refused to leave Rubin’s land.

This time the trial court ruled in favor of the town. On appeal, the Court of Appeals reversed and once again held there was no right to condemn, but stopped short of ordering Apex to vacate. Instead, the court indicated that Rubin could file a separate trespass action. The Supreme Court granted cross petitions for discretionary review.

NCAJ, which had previously filed a brief in the Court of Appeals, filed an amicus brief contending that the Court of Appeals was correct that the Town of Apex had no right to take Rubin’s land, especially through its creative and baseless contortions of the doctrine of inverse condemnation. When the previous efforts at condemnation failed, title to the property immediately vested with Rubin, such that the town had no rights in the property at all. Given that Rubin owns the land and the town has no right to be there, the town should be ordered to leave. The original action was never terminated, as Rubin sought post-judgment relief and the court retained in rem jurisdiction over the property itself, which was undisturbed by Apex filing a subsequent action. Thus, the town can be ordered to leave without yet another lawsuit being filed. Moreover, the town’s actions demonstrate a disturbing disrespect for the judiciary and the finality of its judgments, which should be addressed by the Court.