1. Judges--recusal--no evidence or personal bias, prejudice, or interest
The trial court did not err in denying defendant's motion for the presiding judge's
recusal, based solely on the fact that the plaintiff is Johnston County and the judge is the
Resident Superior Court Judge of that county, because the record reveals no evidence of personal
bias, prejudice, or interest on the part of the presiding judge.
2. Eminent Domain--subject matter jurisdiction--condemnation
The trial court did not err in failing to dismiss a county's challenge of a city's
condemnation proceeding based on lack of subject matter jurisdiction because: (1) the county's
board of commissioners granted the county the substantive right to protect its citizens from
unlawful takings by contiguous local governments, N.C.G.S. § 153A-15; (2) the county was
potentially aggrieved by the affect on its ad valorem tax base; and (3) N.C.G.S. § 153A-15
provides that a condemnor must have the approval of the county board of commissioners of the
county where the land to be condemned is located before final judgment may be entered in any
action of condemnation.
3. Jurisdiction--final judgment--condemnation
The trial court lacked jurisdiction to review two consent judgments previously entered in
condemnation proceedings because: (1) a final judgment fully determines the action, and a court
has no jurisdiction at a subsequent term to proceed further on issues already determined; and (2)
there were no pending motions to set aside the two consent judgments by either of the
landowners or the city.
4. Injunction--permanent--trial pending--error
Even though the county may ultimately prevail and receive the relief requested after full
consideration on the merits, the trial court erred in granting the county a permanent injunction
instead of a preliminary injunction to restrain the city from exercising its power of eminent
domain because the permanent injunction actually determined the final rights of the parties
before a final trial of the action.
J. Mark Payne for plaintiff-appellee.
ROSE, RAND, ORCUTT, CAULEY, BLAKE & ELLIS, P.A., by James P.
Cauley, III, and BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD,
L.L.P., by V. Randall Tinsley, for defendant-appellant.
James B. Blackburn, III and Paul A. Meyer for the NorthCarolina Association of County Attorneys, amicus curiae.<
/i>
Andrew L. Romanet, Jr. and John M. Phelps, II for the North
Carolina League of Municipalities, amicus curiae.
TIMMONS-GOODSON, Judge.
This complex appeal arises from condemnation proceedings
initiated by the City of Wilson (“City”) for land located in
Johnston County. On 29 October 1997, Johnston County (“County”)
filed a complaint in the Superior Court, Johnston County, seeking
a preliminary injunction restraining the City from proceeding with
condemnations and a writ of mandamus requiring that the actions
already filed be dismissed. The City timely answered on 29
December 1997 and moved to dismiss the County's complaint pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
On 4 May 1998, the date of the hearing, the City filed an
additional motion requesting that the presiding judge recuse
himself from the proceedings. Judge Knox V. Jenkins, Jr. denied
the City's motion for recusal, denied the City's Rule 12(b)(6)
motion and granted the County a permanent injunction and writ of
mandamus. The City filed its notice of appeal on 18 May 1998.
The pertinent facts underlying this appeal are as follows:
Over twelve years ago, in an effort to solve its ongoing public
water supply shortage, the City began the necessary proceedings to
add twelve feet of water to the Buckhorn Reservoir on Contentnea
Creek in Wilson County by replacing the existing dam with a larger
one. On 21 February 1997, the City received a federal permit from
the United States Army Corps of Engineers. The permit imposedvarious Clean Water Act and Endangered Species Act requirements on
the City including the acquisition and preservation of land. A
portion of the affected area is located in the County.
Anticipating this requirement, the City approached the County
Board of Commissioners (“Board”) in 1991 and expressed its desire
to proceed with condemnation of approximately 400 acres of land
surrounding the Buckhorn Reservoir. On 22 April 1991, the Board
notified the City that it did not support the proposal. At a
subsequent hearing, the Board informed the City of its concerns
that the property owners be justly compensated for the taking of
their land and that the County be justly compensated for the loss
of the affected properties from its ad valorem tax base. Following
this hearing, the County consented to the City's proposal,
contingent upon reasonable compensation to the County in lieu of
taxes and earnest efforts by the City to negotiate fair settlements
with the affected landowners. The County maintains it never
authorized condemnation of the property by the City.
However, on 20 October 1997, the City initiated condemnation
proceedings against thirty-four County landowners. In two of these
proceedings, the property was conveyed to the City pursuant to
court-approved consent judgments. The City asserted that its
condemnation authority arose from its charter which reads, in
pertinent part, as follows:
The City of Wilson shall possess the
power of eminent domain and may acquire . . .
any real estate . . . either within or without
the city limits, for any lawful public use or
purpose. In the exercise of the power of
eminent domain, the city is hereby vested withall power and authority now or hereafter
granted by the laws of North Carolina
applicable to the City of Wilson, and the city
shall follow the procedures now or hereafter
prescribed by said laws[.] . . . The powers
herein granted to the City of Wilson for the
purpose of acquiring property by eminent
domain shall be in addition to and
supplementary to those powers granted in any
other local act or in any other General
Statute[.]
1989 N.C. Sess. Laws ch. 348, § 17.7.
Nine days later, the County, relying on section 153A-15 of the
North Carolina General Statutes, filed suit seeking injunctive
relief. The statute provides, in pertinent part:
(a) Notwithstanding the provisions of
Chapter 40A of the General Statutes or any
other general law or local act conferring the
power of eminent domain, before final judgment
may be entered in any action of condemnation
initiated by a county, city or town, special
district, or other unit of local government
which is located wholly or primarily outside
another county, whereby the condemnor seeks to
acquire property located in the other county,
the condemnor shall furnish proof that the
county board of commissioners of the county
where the land is located has consented to the
taking.
N.C. Gen. Stat. § 153A-15 (Cum. Supp. 1998).
___________________________________________
I. City's Motion for Recusal
[1]First, we address the City's contention that the trial
court erred in denying its motion for the presiding judge's
recusal. On 4 May 1998, the day of the hearing of this matter, the
City filed a motion for Judge Jenkins' recusal based solely on the
fact that the plaintiff is Johnston County and Judge Jenkins is
the Resident Superior Court Judge of said county and is dulyelected by the citizens thereof. The City's argument is without
merit.
Canon 3(C)(1) of the Code of Judicial Conduct directs that
“[a] judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned[.]” See also N.C. Gen.
Stat. § 15A-1223 (1999). The burden is on the party moving for
recusal “to demonstrate objectively that grounds for
disqualification actually exist.” In re Nakell, 104 N.C. App. 638,
647, 411 S.E.2d 159, 164 (1991), appeal dismissed and disc. review
denied and stay dissolved, 330 N.C. 851, 413 S.E.2d 556 (1992)
(citation omitted). The moving party, supported by affidavits, may
meet his burden by presenting “substantial evidence that there
exists such a personal bias, prejudice or interest on the part of
the judge that he would be unable to rule impartially.” Id. at
647, 411 S.E.2d at 164.
The City presented no affidavits supporting its motion. The
record reveals no evidence of personal bias, prejudice or interest
on the part of Judge Jenkins. We are not inclined to set a
standard that resident superior court judges cannot participate in
proceedings in which the county where the judge resides, and not
the judge himself, has a potential interest in the proceedings.
This assignment of error is overruled.
II. City's 12(b)(6) Motion to Dismiss
[2]We next address the City's argument that the trial court
erred in failing to dismiss the action because it lacked subject
matter jurisdiction. The City asserts that the trial court shouldhave granted its motion to dismiss because: (1) the County lacked
jurisdiction to file the action; (2) the trial court lacked
jurisdiction to hear the action purporting to challenge pending
condemnation proceedings; and (3) the trial court lacked appellate
jurisdiction to review prior Superior Court judgments. We find
these arguments to be without merit.
In its first contention, the City asserts that the County was
not the real party in interest and, therefore, had no standing to
bring this action. We disagree.
It is well settled that an appeal may only be taken by an
aggrieved real party in interest. Insurance Co. v. Ingram, Comr.
of Insurance, 288 N.C. 381, 218 S.E.2d 364 (1975). A “'person
aggrieved'” is one “'adversely affected in respect of legal rights,
or suffering from an infringement or denial of legal rights.'”
State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 104
N.C. App. 216, 218, 408 S.E.2d 876, 877 (1991), disc. review
denied, 330 N.C. 618, 412 S.E.2d 95 (1992) (quoting In re Wheeler,
85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987)(citation
omitted)). In the case sub judice, the County, through its Board
of Commissioners, was statutorily granted the substantive right to
protect its citizens from unlawful takings by contiguous local
governments. See N.C.G.S. § 153A-15. Furthermore, the County
itself was potentially aggrieved by the affect on its ad valorem
tax base. See Orange County v. Dept. of Transportation, 46 N.C.
App. 350, 265 S.E.2d 890, disc. review denied, 301 N.C. 94 (1980).
As such, the County had standing to proceed as an aggrieved realparty in interest.
The City also contends the trial court lacked subject matter
jurisdiction since the City's charter does not authorize a separate
action to review the condemnation actions. However, section 153A-
15 of the General Statutes clearly provides that the condemnor
(here, the City) must have the approval of the county board of
commissioners of the county where the land to be condemned is
located before final judgment may be entered in any action of
condemnation initiated. Therefore, the City's alleged failure to
obtain such approval from the County's Board of Commissioners
establishes the right of the County to seek review under the
statute.
The City further argues that the trial court erred in
reviewing the Superior Court consent judgments which had been
entered in two of the thirty-four condemnation proceedings. Since
the County had standing to bring the action on its own accord, full
dismissal was inappropriate.
[3]However, we agree with the City's contention that the
trial court lacked jurisdiction to review the two consent judgments
previously entered. Since a final judgment fully determines the
action, the court has no jurisdiction at a subsequent term to
proceed further on the issues already determined. Pruett v.
Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957). This is true
especially when, as here, there were no pending motions to set
aside the two consent judgments by either of the landowners or the
City. III. Permanent Injunction
[4]Lastly, we address the City's contention that the trial
court erred in permanently enjoining the City from exercising its
power of eminent domain. In its complaint, the County moved for a
preliminary injunction restraining the City from proceeding with
condemnations in violation of state law. At the hearing, the trial
court determined that the County was “entitled to a permanent
injunction, prohibiting the City of Wilson from proceeding in
Johnston County, without the prior consent of the Commissioners of
Johnston County, pursuant to [the applicable statute].”
“The term, 'preliminary injunction' refers to an interlocutory
injunction issued after notice and hearing which restrains a party
pending trial on the merits.” Pruitt v. Williams, 288 N.C. 368,
371, 218 S.E.2d 348, 350 (1975). “The issuing court, after
weighing the equities, and the advantages and disadvantages to the
parties, determines in its sound discretion whether an
interlocutory injunction should be granted or refused.” Id. at
372, 218 S.E.2d at 351. “The court cannot go further and determine
the final rights of the parties, which must be reserved for the
final trial of the action.” Id.
In the present case, the trial court improperly granted the
County the extreme remedy of a permanent injunction. While the
County may ultimately prevail and receive the relief requested
after full consideration of the merits, it was error to grant
permanent injunctive relief based solely on the pleadings, motions
and arguments of counsel. “The judgment entered in this cause wasa final judgment, entered in equity, and should have been granted
only by the judge at the final trial of the action.” Smith v.
Rockingham, 268 N.C. 697, 699, 151 S.E.2d 568, 569 (1966) (emphasis
omitted). The trial court erred by issuing a permanent injunction
which actually determined the final rights of the parties, rather
than a preliminary injunction.
We decline to address the City's remaining assignments of
error, because of the likelihood they will not recur during the
final stages of this proceeding.
For the foregoing reasons, we affirm the trial court's denial
of the motion to recuse and the majority of the 12(b)(6) motion to
dismiss; we vacate the trial court's review of the previously
entered consent judgments for lack of subject matter jurisdiction
and the trial court's granting of final judgment on the pleadings.
We remand for further proceedings on the motions for permanent
injunction not inconsistent with this opinion.
Affirmed in part; reversed in part and remanded.
Judges LEWIS and HORTON concur.
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