A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in
the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
NO. COA01-1380
NORTH CAROLINA COURT OF APPEALS
Filed: 17 September 2002
PITT & GREENE ELECTRIC
MEMBERSHIP CORPORATION,
Petitioner
v
.
Greene County
No. 00 SP 16
MARY BRYAN CUMMINGS RASBERRY,
KATHERINE RASBERRY PITTS, and
EDWIN A. RASBERRY, III, as
co-executor of the estate of
EDWIN A. RASBERRY, JR., MARY B.
RASBERRY, Individually; MARY
FRANCES R. NEWELL and husband,
RAYMOND NEWELL,
Respondents
Appeal by petitioner from judgment entered 1 May 2001 by Judge
Franklin R. Brown in Greene County Superior Court. Heard in the
Court of Appeals 21 August 2002.
Vandeventer Black LLP, by Norman W. Shearin, Jr., for
petitioner.
Kirk, Kirk, Howell, Cutler & Thomas, LLP, by Joseph T. Howell,
for respondents.
BRYANT, Judge.
On 9 March 2000, petitioner Pitt & Greene Electric Membership
Corporation commenced this condemnation proceeding pursuant to
Chapter 40A of the North Carolina General Statutes to acquire a
power line easement across a portion of a 495 acre farm owned by
respondents Edwin A. Rasberry, Jr., et ux et al. On 15 June 2000,
three commissioners appointed by the Greene County Clerk of
Superior Court filed a report assessing just compensation for thetaking of the power line easement at $43,353. On 18 June 2000, the
clerk entered an order confirming the report of the commissioners.
Respondents excepted to the order, appealed, and requested a jury
trial as to the issue of just compensation.
A jury trial was conducted on 2-3 April 2001 at Greene County
Superior Court with the Honorable Franklin R. Brown presiding. The
jury returned an award of $85,000 as just compensation. Judgment
in accordance with the award was entered 1 May 2001. Petitioner
gave notice of appeal on 25 May 2001.
_______________________________________
I.
First, petitioner argues that the trial court erred by failing
to exclude evidence of the interest and area taken by the
petitioner. Specifically, petitioner argues that the trial court
erred by failing to exclude, sua sponte, portions of Shankel's
(respondents' witness) testimony concerning the nature and extent
of the rights acquired by petitioner.
N.C. R. App. P. 10 (b)(1) provides that to preserve an issue
for appellate review, a party must have presented a timely
objection or motion to the trial court, and must have received a
ruling on that objection or motion.
In the instant case, through the entirety of Shankel's direct
and redirect examination, petitioner failed to make one single
objection to any of Shankel's testimony. Petitioner presents to
this Court a hybrid plain error argument by contending that the
trial court should have excluded this evidence on its own motion. However, plain error review applies only to evidentiary rulings and
jury instructions in criminal cases. State v. Cummings, 346 N.C.
291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S.
1092, 139 L. Ed. 2d 873 (1998). To preserve this issue for
appellate review, petitioner was under an obligation to make the
appropriate objections at trial. Therefore, this assignment of
error is overruled.
II.
Second, petitioner argues that the trial court erred in
granting respondents' motion in limine to exclude evidence of
special and general benefits. We disagree.
N.C.G.S. § 8C-1, Rule 103(a)(2) (2001) provides, "Effect of
erroneous ruling. _ Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party
is affected, and . . . [i]n case the ruling is one excluding
evidence, the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions
were asked."
The record reflects that the trial court granted respondents'
motion in limine to exclude petitioner witness Suggs' proposed
testimony as to how the transmission line, as planned, would
improve the reliability of electric service. Contemporaneous with
granting the motion, the trial court stated it would not go into
the proffered testimony of petitioner witness Booth, and would
consider objections as they arose at trial. Petitioner intended to
introduce Booth's testimony to establish that the transmission linewould bring a measurable benefit to the Rasberry tract, based on
evidence of benefits brought to a similar tract of land near
Tarboro, North Carolina. At trial, respondents' objection was
sustained as to petitioner's question to Booth, "Do you believe
that -- believe that the potential exists for this transmission
line to enhance the development potential of this property?"
Our review of the record reveals that petitioner failed to
make an offer of proof either when Suggs or Booth's testimony was
excluded from evidence. In order for this Court to make a fair,
complete, and just assessment of the alleged error concerning the
exclusion of evidence, it is incumbent upon the complaining party
to make an offer of proof as to what the excluded evidence would
have revealed. The petitioner has failed to properly preserve this
issue for appellate review, therefore, this assignment of error is
overruled.
III.
Third, petitioner argues that the trial court erred in
instructing the jury that "Compensation is to be assessed on the
basis of the rights acquired by Pitt & Greene. It is not what Pitt
& Greene actually does, but what it acquires the right to do."
Specifically, petitioner argues that this instruction is in discord
with the mandate of N.C.G.S. § 40A-66. We disagree.
When a party on appeal contests the correctness of a jury
instruction, the appellate court must review the instructions in
their entirety.
In re Hendrickson, ___ N.C. App. ___, ___, 565
S.E.2d 254, 262 (2002). Moreover a party appealing the instructionhas the burden of showing that the error occurred and that the
error, in light of the entire charge, was likely to mislead the
jury.
Id. at ___, 565 S.E.2d at 262.
N.C.G.S. § 40A-66 (2001) provides:
§ 40A-66. Compensation to reflect project as
planned
(a) If there is a taking of less than the
entire tract, the value of the remainder on
the valuation date shall reflect increases or
decreases in value caused by the proposed
project including any work to be performed
under an agreement between the parties.
(b) The value of the remainder, as of the
date of valuation, shall reflect the time the
damage or benefit caused by the proposed
improvement or project will be actually
realized.
The trial court provided the following jury instructions, in
pertinent part:
The measure of just compensation to
which the owners are entitled where an
easement is taken is the difference between
the fair market value of the property
immediately before the taking and the fair
market value of the property immediately after
the taking, that is, immediately after it was
made subject to the easement.
Compensation is to be assessed on
the basis of the rights acquired by Pitt &
Greene. It is not what Pitt & Greene actually
does, but what it acquires the right to do.
. . .
You must find the fair market value
of the property immediately before the time of
the taking and the fair market value of the
remainder immediately after the taking on
March 9, 2000, and not as of the present day
or any other time.
In arriving at the fair market value
of the property immediately before the taking,
you should in light of all the evidence
consider not only the use of the property at
that time, but also all the uses to which it
was then reasonably adaptable, including what
you find to be the highest and best use or
uses.
Likewise, in arriving at the value
of the remainder immediately after the taking,
you should in light of all the evidence
consider not only the use of the property at
that time, but all the uses to which it was
then reasonably adaptable, including what you
find to be the highest and best use or uses.
In arriving at the fair market value
of the remainder immediately after the taking,
you should consider the property as it will be
at the conclusion of the project.
(Emphasis added.).
In reviewing the sum of the above stated excerpt, it appears
the instructions were in compliance with the statutory requirements
of N.C.G.S. §§ 40A-1 to 40A-70 (Eminent Domain), including the
statutory mandate of N.C.G.S. § 40A-66. Moreover, petitioner has
not met his burden of showing the contested language was likely to
mislead the jury _ especially in light of the above italicized
excerpt. Therefore, this assignment of error is overruled.
AFFIRMED.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
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