CARDINAL EXTENSION COMPANY, LLC,
Petitioner
v
.
Wake County
No. 99 SP 438
WILLARD C. PLEASANT
and HAZEL J. PLEASANT,
Respondents
Womble Carlyle Sandridge & Rice, PLLC, by John C. Cooke and
Christine Carlisle Odom, attorneys for petitioner-appellant.
Kirk, Kirk, Gwynn & Howell, L.L.P., by Joseph T. Howell,
attorney for respondents-appellees.
THOMAS, Judge.
Petitioner, Cardinal Extension Company, LLC, appeals the trial
court's judgment ordering it to pay $199,500.00 for the taking of
respondents' property for a natural gas pipeline easement.
Cardinal contends the trial court erred in five ways: (1) in
permitting Charles Bass to give an opinion regarding the value of
respondents' property after the acquisition (after value) because
the trial court earlier granted Cardinal's motion in limine to
exclude his opinion; (2) by denying Cardinal's motion to strike
Bass's and Clemm Shankle's opinions as to the property's after
value; (3) by denying Cardinal's motion for a new trial; (4) indenying Cardinal's motions to amend the judgment and to conform an
exhibit to the evidence; and (5) in granting respondents' motion
for costs. For the reasons herein, we find no error.
Cardinal is a North Carolina natural gas public utility. On
10 March 1999, it filed a special proceeding pursuant to Article
II, Chapter 40A of the North Carolina General Statutes to acquire
a sixty-foot wide permanent utility easement and a 1.98-acre
temporary work space easement across land owned by respondents,
Willard and Hazel Pleasant. Under Article II, all issues of law
and fact raised by the parties are first determined by the Clerk of
Superior Court. N.C. Gen. Stat. § 40A-25 (2001). In the
proceeding, the Clerk of Superior Court of Wake County found that
Cardinal had the right to acquire the property and appointed three
freeholders to appraise it and determine the proper amount of
compensation. Both parties filed exceptions to the freeholders'
estimate that the amount of compensation should be $37,500.00. The
Clerk nonetheless entered a judgment finding that the compensation
due respondents was $37,500.00. The parties appealed to the trial
court.
Prior to jury selection, the parties submitted multiple
motions in limine. Cardinal only opposed respondents' motion that
the trial court exclude evidence of “[a]ny policies and procedures
of [Cardinal] that are inconsistent with the rights taken.”
Respondents maintained that the motion was based on the inclusive
language in Cardinal's “very broadly termed” permanent easement.
They insist they never contended the easement represented a totaltaking, but rather requested that Cardinal not be allowed to offer
evidence that its intended use of the easement was less than the
scope of the rights actually acquired. The trial court concluded:
[T]here are some rights retained by the
Respondents in this case, and so I don't know
that the motion in limine is well taken,
except as it might in any way verify the terms
of the easement. And in terms of talking
about policies in advance of the easement, to
that extent, I don't think petitioner can do
that, but otherwise I wouldn't restrict them
to talking about what rights may have been
retained by the Petitioner in this case.
Thereafter the trial court heard Cardinal's motions in limine.
In one pleading, Cardinal asserted six motions requesting exclusion
of: (1) hypothetical subdivision drawings prepared by Bass and
Shankle; (2) page 34 of Bass's appraisal report (the “Bass
Appraisal”), which details the calculation of the tract's value
before acquisition (before value); (3) pages 35-36 of the Bass
Appraisal, which details the calculation of the tract's after
value; (4) page 36 of the Bass Appraisal, which sets forth an
alternative analysis for valuing the property; (5) page 36 of the
Bass Appraisal, which states Bass's final conclusions as to the
property's value; (6) page 33 and Exhibit I of the Bass Appraisal,
which state the asking price for lots in the Kirk Wood Subdivision;
and (7) the selling prices of hypothetically developed lots. The
arguments concerning these motions advanced by both parties focused
primarily on whether reference to a hypothetical subdivision of the
property, or the use of a hypothetical subdivision map to
illustrate respondents' appraisers' testimony, should be
permissible. In ruling on the motions, the trial court acknowledged that
respondents' appraisers believed the highest and best use of the
property was residential and that they used comparable sales in
valuing it. The trial court then noted, however, that the use of
maps of a hypothetical subdivision was speculative, “and so I have
problems with allowing that, and think that [Cardinal's] motion in
limine is well taken, and would allow it at this point.”
Cardinal maintains that the trial court's ruling excluded all
of Bass's opinions concerning after value because they were based
solely on the assumption of the hypothetical lots.
Bass was respondents' first witness. He said he had done
twelve or thirteen appraisals on this same project for Cardinal.
He further stated that he had obtained information regarding thirty
or forty sales surrounding the property as part of his appraisal
process. Bass testified without objection to a before taking value
of $1,800,000.00, and that the highest and best use of the property
after the taking was for residential subdivision development. He
then gave the opinion, over Cardinal's objection, that the
property's value immediately after the taking was $1,632,000.00.
Thus, Bass estimated there was $168,000.00 in damages.
Shankle, meanwhile, said he examined between fourteen and
sixteen surrounding property sales and that the fair market value
of the property immediately before the taking was $1,500,000.00.
The highest and best use of the property after the taking,
according to Shankle, was as a residential subdivision. He valued
the property at $1,290,000.00 immediately after the taking, whichamounted to a $210,000.00 reduction.
After respondents' rested their case, Cardinal moved to strike
that portion of Bass's and Shankle's testimony concerning the after
value. The motion was denied.
Diana Conn testified for Cardinal as an expert appraiser and
also used a comparable sales approach. She adjusted downward the
sales for the area within the permanent and temporary easements,
but found no loss in value to the land lying outside the easement
area. She valued the property at $1,400,000.00 before the
acquisition, and determined the difference between the before value
and the after value to be $32,000.00.
The jury rendered a verdict of $199,500.00. Cardinal appeals.
By its first assignment of error, Cardinal contends the trial
court erred in allowing Bass to give an opinion regarding the value
of respondents' property after the acquisition because this opinion
had been excluded by the trial court when it granted Cardinal's
motion in limine. We disagree.
“[T]he court's ruling [on a motion in limine] is not a final
ruling on the admissibility of the evidence in question, but only
interlocutory or preliminary in nature. Therefore, [it] is subject
to modification during the course of the trial.” Heatherly v.
Industrial Health Council, 130 N.C. App. 616, 619, 504 S.E.2d 102,
105 (1998). Moreover, “[a] motion in limine is insufficient to
preserve for appeal the question of the admissibility of evidence
if the [movant] fails to further object to that evidence at the
time it is offered at trial.” Martin v. Benson, 348 N.C. 684, 685,500 S.E.2d 664, 665 (quoting State v. Conaway, 339 N.C. 487, 521,
453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d
153 (1995), reh'g denied, 349 N.C. 242, 515 S.E.2d 706 (1998).
Here, Cardinal did object when Bass was asked his opinion
regarding the after value, thereby preserving the issue for appeal.
The trial court overruled the objection and Bass responded:
“$1,632,000.” Cardinal contends the trial court “reversed” its
previous in limine ruling.
We note first that Cardinal did not request in its motion in
limine that Bass's opinion as to after value be deemed
inadmissible, and the trial court never ruled it inadmissible.
Rather, Cardinal prayed that the trial court preclude the
introduction of specific pages of Bass's written appraisal report
and the selling prices of hypothetically developed lots.
Second, as noted above, a motion in limine is subject to
modification at trial. Heatherly, 130 N.C. App. at 619, 504 S.E.2d
at 105. The trial court's ruling that it was granting Cardinal's
motion “at this point” indicates it “properly viewed its in limine
ruling as preliminary, tentative and subject to modification as
presentation of the evidence progressed.” Id. at 623, 504 S.E.2d
at 107. Moreover, the record reflects that both parties focused
their arguments, and the trial court its ruling, on the use of
hypothetical maps or reference to a hypothetical subdivision.
Accordingly, the trial court did not err in allowing Bass to give
his opinions as to the after value simply because it had allowed
Cardinal's motion in limine. We reject Cardinal's argument. By its second assignment of error, Cardinal contends the trial
court erred in denying its motion to strike Bass's and Shankle's
opinions regarding the property's after value. We disagree.
Cardinal argues that the testimony of respondents' appraisers
is inadmissible because of deficiencies in both their methodology
and supporting data. It contends Bass and Shankle failed to follow
the methodology of the comparison sales approach, gave opinions
without providing underlying data or supporting facts, and that the
market data and facts in their written appraisals contradict their
opinions.
Rule 705 of the North Carolina Rules of Evidence provides that
an “expert may testify in terms of opinion or inference and give
his reasons therefor without prior disclosure of the underlying
facts or data, unless an adverse party requests otherwise . . . .”
N.C.R. Evid. 705. Here, both experts extensively testified
regarding their research for the appraisals. Both reviewed
comparable sales and determined that the highest use was as a
residential subdivision. They answered questions on cross-
examination regarding the reasons for their opinions and
inferences. Bass offered several times to provide further
explanations of his methodology for appraising the property. We
note finally that any evidence questioning the sufficiency of the
factual basis of the expert opinion affects the credibility of the
testimony but not its competence as evidence. Horne v. Roadway
Package Systems, Inc., 129 N.C. App. 242, 244, 497 S.E.2d 436, 438
(1998). Accordingly, the trial court did not err in denyingCardinal's motion to strike the experts' opinions as to the
property's after value.
Cardinal next assigns as error the trial court's denial of its
motion for a new trial. Cardinal asserts eleven grounds for a new
trial. We now proceed only to those arguments not previously
addressed here.
An appellate court's review of a trial court's ruling either
granting or denying a motion to set aside a verdict and order a new
trial is strictly limited to the determination of whether the
record affirmatively demonstrates an abuse of discretion by the
trial court. Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d
599, 602 (1982).
One ground for a new trial argued by Cardinal is a statement
by Bass while testifying, where he referred to Cardinal's appraiser
as a “little girl.” However inappropriate, we hold that the
reference does not rise to the level of being prejudicial error
requiring a new trial.
Another ground addresses allegedly improper conduct during
summation, which was not recorded. Specifically, Cardinal
maintains that through summation and improperly admitted evidence,
respondents in effect asked the jury to determine the scope of the
easement. The record reflects no request for an instruction or any
objection by Cardinal. The trial court used pattern jury
instructions on easements and also instructed the jury that:
“Where an easement is taken for a natural gas line, the owner does
not give up all title to his land.” Accordingly, we find no meritto this contention.
Two additional grounds are based on a claim that the jury
disregarded the trial court's instructions and awarded excessive
damages. Cardinal contends the jury's verdict of $199,500.00
establishes that the jury ignored the instructions and treated the
easement as a fee simple taking. The verdict, however, is
consistent with respondents' evidence. We held that the testimony
of respondents' appraisers was admissible expert testimony.
Therefore, the evidence does not establish “[e]xcessive or
inadequate damages appearing to have been given under the influence
of passion or prejudice.” N.C.R. Civ. P. 59(a)(6).
The final two grounds allege errors of law committed during
trial. The first incorporates grounds one through nine in support
of the contention that there was “[e]rror in law occurring at the
trial and objected to by the party making the motion.” N.C.R. Civ.
P. 59(a)(8). Since we find no error based on the first nine
grounds, we reject this contention. The second asserts that
respondents are precluded from referencing terms in the easement
because the only issue for trial was just compensation. Since the
rights acquired by the condemnor determine the amount of damages,
see Gas Co. v. Hyder, 241 N.C. 639, 642, 86 S.E.2d 458, 460 (1955),
reference to the easement's terms was permissible. Cardinal's
argument is without merit.
By its fourth assignment of error, Cardinal contends the trial
court erred in denying its motions to amend the judgment and to
conform an exhibit to the evidence, namely that it now receives afee simple interest in the area of the easement. Cardinal cites no
legal authority in support of its argument and we therefore deem it
abandoned. N.C.R. App. P. 28(b)(5).
Lastly, Cardinal contends the trial court abused its
discretion in granting respondents' motion for court costs. “An
abuse of discretion occurs when the trial court's ruling 'is so
arbitrary that it could not have been the result of a reasoned
decision.'” Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.
App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347
N.C. 670, 500 S.E.2d 84 (1998) (quoting White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985)).
Section 40A-8 of the North Carolina General Statutes provides
that:
In any action under the provisions of Article
2 or Article 3 of this Chapter, the court in
its discretion may award to the owner a sum to
reimburse the owner for charges he has paid
for appraisers, engineers and plats, provided
such appraisers or engineers testify as
witnesses, and such plats are received into
evidence as exhibits by order of the court.
N.C. Gen. Stat. § 40A-8(a) (2001). Pursuant to section 40A-8, the
trial court reimbursed respondents for costs incurred for the
services of appraisers. Section 40A-13 of our General Statutes
further provides: “In addition to any reimbursement provided for
in G.S. 40A-8 the condemnor shall pay all court costs taxed by the
court.” N.C. Gen. Stat. § 40A-13 (2001). Therefore, the trial
court's order taxing court costs to Cardinal was not arbitrary, and
we find no error.
NO ERROR. Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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