THE CITY OF CHARLOTTE, A
Municipal Corporation
v
.
Mecklenburg County
No. 98 CVS 13791
WHIPPOORWILL LAKE, INC.
Rosenman & Colin LLP, by Francis M. Pinckney, III, for
plaintiff-appellant.
The Hamel Lawfirm, P.A., by William F. Hamel and W.B. Hamel;
and DeVore Acton & Stafford, P.A., by Fred W. DeVore, for the
defendant-appellee.
THOMAS, Judge.
Plaintiff, the City of Charlotte, appeals a jury award of
$530,635.55 in a condemnation action against defendant,
Whippoorwill Lake, Inc. The tract at issue is 11.6 acres,
including a lake, and is near Charlotte/Douglas International
Airport.
The City sets forth two assignments of error: (1) the trial
court erred in allowing defendant to file an answer after
expiration of a statutory twelve-month deadline; and (2) the trial
court abused its discretion in denying plaintiff's motion for a new
trial because the evidence did not support the jury's verdict.
Defendant sets forth two cross-assignments of error: (1) the trialcourt erred in finding that plaintiff obtained proper service of
process against it; and (2) the trial court erred in excluding
evidence of the sales of comparable properties that were not
purchased under the threat of condemnation.
As to the City's assignments of error, we hold that the trial
court did not err. For the reasons herein, we decline to consider
defendant's cross-assignments of error.
Defendant was incorporated in 1952 and owns the acreage
involved in this case. Because it failed to maintain a registered
agent or office, the City's service of process was obtained on 28
September 1998 by delivery of summons and complaint to the North
Carolina Secretary of State. See N.C. Gen. Stat. § 55-5-04 (1999).
The Secretary of State, however, had no address for defendant and
therefore did not transmit copies of the summons and complaint.
Defendant's evidence tended to show that, prior to attempting
service through the Secretary of State, the City had actual and
constructive knowledge of Whippoorwill Hills Club, Inc.'s ownership
of stock in defendant, and the addresses of Roy Stilwell,
defendant's president, and Della Medlin, who annually received
defendant's property tax bill.
On 9 November 1999, more than a year after obtaining service
of process through the Secretary of State, the City filed a Notice
of Hearing on a motion for entry of default. However, no copy of
such a motion was included in the record on appeal. It served the
notice on Stilwell, Medlin, and the incorporator of defendant,
attorney James B. Craighill. Defendant then moved to extend timeto file an answer to the original complaint. The City followed by
filing an Affidavit of Service and a Motion for Entry of Default.
By order entered 29 November 1999, the trial court denied the
City's motion and allowed defendant thirty days from the date of
the order to file responsive pleadings.
The City had deposited $81,000.00 into the Mecklenburg County
Clerk of Superior Court's office upon filing the complaint. At
trial, the sole issue before the jury was the property's fair
valuation at the time of the taking.
The evidence showed that part of the property had originally
been developed in 1952 as an eleven-acre lake, thirty-five feet
deep, with a 0.6 acre dam. The lots surrounding the lake were
residential, and the lake was used for recreational fishing and
swimming. Due to airport expansion in the 1980s, however, the City
purchased by voluntary sale all but one home and three residential
lots surrounding the lake. In 1990, state officials ordered the
earthen dam breached. The lake was lowered twenty feet and its
size reduced to three acres.
Defendant presented two expert appraisers, Stewart Tedford and
John McPherson, while Jack Morgan and Paul Finnen testified as
experts for the City. All four appraisers valued the property as
a lake, using the sales comparison approach to determine fair
market value. Tedford and McPherson testified that the property's
highest and best use was as a view amenity for assemblage with the
surrounding properties. They valued the property at $464,000.00
and $437,320.00, respectively. Additionally, Stilwell testified that based on his knowledge
of “other land that sold around the property,” the value of the
property was $580,000.00. While Stilwell did not provide
information about specific comparable sales that supported his
opinion, he did testify that he was one of the original developers
of the land and had lived most of his life on it.
One of plaintiff's witnesses, Evander Rowell, a civil
engineer, testified that the cost of converting the property to a
view amenity would be at least $150,000.00 and as much as
$500,000.00 because of the land's topography. Based on the
conversion cost, Morgan and Finnen said that use of the lake as a
view amenity was not practical since development of the 8.6 acres
surrounding the lake was cost prohibitive. They claimed the
highest and best use of the property to be light industrial.
Morgan valued the property on the date of taking at $53,200.00.
Finnen, who has worked for the City of Charlotte as an airport
consultant since 1988, valued the property at $85,000.00.
By the City's first assignment of error, it contends the trial
court erred in allowing defendant to file an answer after
expiration of the statutory twelve-month deadline. Section 136-107
of our General Statutes states:
Any person named in and served with a
complaint and declaration of taking shall have
12 months from the date of service thereof to
file answer. Failure to answer within said
time shall constitute an admission that the
amount deposited is just compensation and
shall be a waiver of any further proceeding to
determine just compensation; in such event the
judge shall enter final judgment in the amount
deposited and order disbursement of the moneydeposited to the owner. Provided, however, at
any time prior to the entry of the final
judgment the judge may, for good cause shown
and after notice to the plaintiff, extend the
time for filing answer for 30 days.
N.C. Gen. Stat. § 136-107 (1999) (emphasis added). Based on the
plain language of the statute, we reject the City's argument that,
because the twelve-month time limit had expired, the trial court
had no discretion “prior to the entry of the final judgment . . .
for good cause shown . . . to . . . extend the time for filing
answer for 30 days.”
In City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457,
cert. denied, 348 N.C. 496, 510 S.E.2d 380 (1998), this Court dealt
with a condemnation statute, N.C. Gen. Stat. § 40A-46, that uses
language identical to section 136-107 except that the time period
for filing an answer is 120 days. N.C. Gen. Stat. § 40A-46 (1999).
In Woo, the 120-day time period had expired for the defendant to
file an answer, but final judgment had not yet been entered against
him. Id. at 188, 497 S.E.2d at 461. After finding that an entry
of default would be unfair, the trial court allowed the defendant
a thirty-day extension from the date of its order to answer. Id.
The Woo Court held that the trial court properly exercised its
discretion under section 40A-46. Id.
Here, the trial court stated in its order that “for good cause
shown” defendant should be allowed a thirty-day extension for
filing an answer. Final judgment had not been entered against
defendant. Accordingly, the trial court did not abuse its
discretion and we reject this assignment of error.
The City's second assignment of error is that the trial court
abused its discretion in denying its motion for a new trial
pursuant to Rule 59(a)(7) of the North Carolina Rules of Civil
Procedure. The City contends the evidence regarding valuation of
the property was insufficient as a matter of law to support the
jury's verdict of $530,635.55. We disagree.
It is well-established that a “trial court's decision to
exercise its discretion to grant or deny a Rule 59(a)(7) motion for
a new trial for insufficiency of the evidence must be based on the
greater weight of the evidence as observed firsthand only by the
trial court.” In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863
(1999) (emphasis omitted).
Here, the evidence establishes: (1) defendant's experts
appraised the property at $464,000.00 and $437,320.00; (2) the
City's experts valued the land at $85,000.00 and $53,200.00; and
(3) Stilwell valued the land at $580,000.00. We note that Stilwell
was long familiar with the property at issue as well as its
contiguous lands. His testimony was therefore properly admitted.
See City of Burlington v. Staley, 77 N.C. App. 175, 177, 334 S.E.2d
446, 449 (1985). (“Any witness familiar with the land may testify
as to his opinion of the value of the land taken and as to the
contiguous lands before and after the taking.”).
The jury's award of $530,635.55 is consistent with defendant's
evidence. We hold that there was sufficient evidence presented to
the jury by defendant's two appraisers and a non-expert witness to
support its verdict. Therefore, the City's contentions that, dueto the lack of evidence, the verdict is excessive, see N.C.R. Civ.
Pro. 59(a)(6), and shows a manifest disregard by the jury of the
trial court's instructions, see N.C.R. Civ. Pro. 59(a)(5), are also
without merit. Accordingly, the trial court did not abuse its
discretion in denying the City's motion for a new trial.
By its third assignment of error, the City contends
defendant's cross-assignments of error should be denied on both
procedural and substantive grounds. Rule 10(d) of our Rules of
Appellate Procedure provides that, “an appellee may cross-assign as
error any action or omission by the trial court . . . which
deprived the appellee of an alternative basis in law for supporting
the judgment . . . from which an appeal has been taken.” N.C.R.
App. P. 10(d).
Defendant sets forth two cross-assignments of error: (1) the
trial court erred in finding valid process of service on defendant
when the City failed to use due diligence and the Secretary of
State failed to mail copies to defendant; and (2) the trial court
erred in disallowing certain evidence of comparable sales. The
first cross-assignment of error concerns claims that the trial
court erred in its findings of fact and conclusions of law. Those
claims do not provide an alternate basis in law for supporting the
judgment. See Lewis v. Edwards, 147 N.C. App. 39, 51, 554 S.E.2d
17, 24 (2001). The second cross-assignment of error is an
evidentiary argument that also does not provide an alternate basis
in law. See Welling v. Walker, 117 N.C. App. 445, 449, 451 S.E.2d
329, 332 (1994), disc. review allowed, 339 N.C. 742, 454 S.E.2d663, and review dismissed as improvidently granted, 342 N.C. 411,
464 S.E.2d 43 (1995). The proper method to raise these issues
would have been by cross-appeal. Lewis, 147 N.C. App. at 51, 554
S.E.2d at 24. Accordingly, we do not consider defendant's cross-
assignments of error.
NO ERROR.
JUDGES MARTIN and HUDSON concur.
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