Appeal by plaintiffs from judgment entered 3 April 2002 by
Judge James C. Davis in Cabarrus County Superior Court. Heard in
the Court of Appeals 16 April 2003.
Helms Mullis & Wicker, P.L.L.C., by James G. Middlebrooks and
Steven A. Meckler, for plaintiffs-appellants.
Hamilton Gaskins Fay & Moon, P.L.L.C., by Robert C. Stephens
and George W. Sistrunk, III, for defendant-appellee.
Defendant City of Kannapolis sought to condemn the property of
plaintiffs Robert and Carolyn Tucker in order to acquire an
easement for expansion of the City's sewer system. The Tuckers
filed a declaratory judgment action asking the trial court todeclare that the City had no authority to condemn their property.
Plaintiffs appeal from the trial court's order in favor of the
Plaintiffs contend on appeal that the trial court erred in
refusing to allow Mr. Tucker to testify orally to rebut the City's
affidavits and that those affidavits are insufficient to support
the trial court's decision. Because plaintiffs have failed to
demonstrate that the trial court's refusal to allow oral testimony
was an abuse of discretion and because the evidence in the record
establishes no genuine issue of material fact regarding the City's
entitlement to a declaratory judgment in its favor, we affirm.
On 20 August 2001, Mr. Tucker received a letter from the City
Manager for the City of Kannapolis advising him that the City would
be entering the Tuckers' property to prepare for the placement of
a proposed sewer line. Plaintiffs have alleged that this sewer
line is intended for the private use of Ken Lingafelt, who owns
property neighboring plaintiffs' tract and intends to develop a
subdivision on that property. After the Tuckers objected that the
City was exceeding its power of eminent domain they received a
notice of condemnation, on 19 November 2001, stating that the City
intended to file a condemnation action.
On 27 December 2001, plaintiffs filed an unverified complaint
seeking a declaratory judgment that the City lacked authority to
condemn their property because of the absence of any public benefit
or use. Plaintiffs also sought a preliminary injunction
prohibiting the City from appropriating or entering onto their
property. The City filed an answer denying the pertinent allegations of
the complaint and asserting as an affirmative defense that the
condemnation was for the public use and benefit. In addition, the
City's answer contained a "Motion for Declaratory Judgment,"
seeking an order (a) declaring the City's condemnation of
plaintiffs' property to be a valid exercise of the City's power of
eminent domain, (b) denying plaintiffs' request for injunctive
relief, and (c) dismissing plaintiffs' complaint.
In March 2002, the City served plaintiffs with two affidavits:
the affidavit of Wilmer Melton, III (the Water and Wastewater
Resources Director for the City) and the affidavit of Michael Legg
(the City's Assistant Manager responsible for the installation of
sewer lines). Plaintiffs did not file any responsive affidavits.
On 1 April 2002, a hearing was held on the City's motion.
According to plaintiffs' brief on appeal, Mr. Tucker was not
allowed to testify. Plaintiffs have not, however, filed a
transcript of that hearing with this Court.
On 3 April 2002, the trial court entered an order finding that
the Tucker condemnation was part of and necessary to the City's
plan to extend sanitary sewer service to newly annexed areas within
the City's jurisdiction and that the condemnation was for a public
use and provided a public benefit to the City's citizens. The
court concluded, therefore, that the condemnation was a legitimate
and valid exercise of the City's power of eminent domain pursuant
to Chapters 40A and 160A of the North Carolina General Statutes.
The court entered a declaratory judgment in the City's favor,
denied plaintiffs' request for injunctive relief, and dismissedplaintiffs' complaint with prejudice.
 Plaintiffs first argue that the trial court erred in not
allowing oral testimony from Mr. Tucker at the 1 April hearing.
The record on appeal does not, however, contain the information
necessary for us to review this assignment of error.
Rule 9 of the North Carolina Rules of Appellate Procedure
provides that "review is solely upon the record on appeal and the
verbatim transcript of proceedings, if one is designated,
constituted in accordance with this Rule 9." The record on appeal
is specifically required to contain "so much of the evidence . . .
as is necessary for an understanding of all errors assigned, or a
statement specifying that the verbatim transcript of proceedings is
being filed with the record pursuant to Rule 9(c)(2), or
designating portions of the transcript to be so filed." N.C.R.
App. P. 9(a)(1)(e). As appellants, plaintiffs bore the burden of
ensuring that all necessary information was included in the record
on appeal as required by Rule 9. Miller v. Miller
, 92 N.C. App.
351, 353, 374 S.E.2d 467, 468 (1988) ("It is the appellant's
responsibility to make sure that the record on appeal is complete
and in proper form."). Plaintiffs have, however, neither filed a
transcript of the motion hearing nor included documents in the
record that would enable us to review any refusal by the trial
court to allow Mr. Tucker's testimony.
Because plaintiffs did not file a transcript, our review is
limited to the record on appeal.
The record contains nothing
showing (a) that plaintiffs specifically requested that Mr. Tuckerbe allowed to testify, (b) the reasons they argued to the court to
allow the testimony, or (c) the reasons that the court relied upon
in refusing to grant plaintiffs' request. Without having some
indication of the basis for the trial court's ruling, we cannot
determine whether the court's refusal to allow oral testimony was
an abuse of discretion. See Lowder v. All Star Mills, Inc.
N.C. App. 699, 704-05, 300 S.E.2d 241, 244 (a trial court's
decision to hear a pretrial motion only on affidavits is reviewed
for abuse of discretion), disc. review denied,
308 N.C. 387, 302
S.E.2d 250 (1983). In fact, the record does not even contain any
evidence that the trial court ever issued the ruling challenged on
(See footnote 1)
Since plaintiffs have failed to include in the record the
evidence or other documentation necessary for an understanding of
the issue on appeal, this assignment of error is overruled.
 Plaintiffs also argue that the trial court erred in
concluding that the proposed taking was for a permissible public
purpose. We disagree.
Plaintiffs first contend that the affidavits submitted by the
City were not competent evidence to support the trial court's
conclusion because they amounted to inadmissible hearsay.
Plaintiffs admit, however, that they did not object at the hearing
to the admission of the affidavits. They have therefore waived any
claim that the affidavits constituted hearsay. In any event, since
the court was addressing a pretrial motion, affidavits were thepreferred form of evidence. Lowder
60 N.C. App. at 704-05, 300
S.E.2d at 244 (for pretrial motion hearings, affidavits and not
oral testimony are the preferred form of evidence).
Although the City's motion was labeled "Motion for Declaratory
Judgment," it appears that it was intended to be and was treated by
the trial court as a motion for summary judgment. The record
contains no indication that plaintiffs objected below to this
approach. North Carolina courts have in fact held that summary
judgment is an appropriate procedure in an action, such as this
one, for a declaratory judgment. Medearis v. Trs. of Myers Park
, 148 N.C. App. 1, 4, 558 S.E.2d 199, 202 (2001)
(citing cases), disc. review denied,
355 N.C. 493, 563 S.E.2d 190
(2002). On appeal, this Court must review the whole record to
determine (1) whether the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material
fact; and (2) whether the moving party was entitled to judgment as
a matter of law. Von Viczay v. Thoms
, 140 N.C. App. 737, 738, 538
S.E.2d 629, 630 (2000), aff'd per curiam
, 353 N.C. 445, 545 S.E.2d
The General Assembly has granted the power of eminent domain
to municipalities "[f]or the public use or benefit," including
establishing or extending sewer and septic tank lines and systems.
N.C. Gen. Stat. § 40A-3(b)(4) (2001). See also
N.C. Gen. Stat. §§
160A-311(3), 160A-312(a) (2001) (granting cities the authority to
construct "public enterprises," including septic and other disposal
systems, in order to furnish services to their citizens). Whethera condemnor's intended use of the property is for "the public use
or benefit" is a question of law for the courts. Stout v. City of
, 121 N.C. App. 716, 718, 468 S.E.2d 254, 257 (1996). Our
Supreme Court has held that courts must consider whether a proposed
condemnation satisfies two separate tests: a public use test and
a public benefit test. Carolina Telephone and Telegraph Co. v.
, 321 N.C. 426, 430, 364 S.E.2d 399, 401 (1988).
Under the "public use test," the dispositive determination is
"whether the general public has a right to a definite use of the
property sought to be condemned." Id.
The "public's right
not the public's actual use" is the key factor in making the
required determination. Id.
Under the "public benefit test," the dispositive determination
is "whether some benefit accrues to the public as a result of the
desired condemnation." Id.
If the proposed condemnation would
"contribute to the general welfare and prosperity of the public at
large" and if that contribution cannot readily be furnished without
the aid of governmental power, then the public benefit test is
at 432, 364 S.E.2d at 402.
The City's affidavits established that the condemnation of the
Tuckers' property meets both tests. These affidavits explained
that the City had annexed certain real property in Rowan County in
1999 and that the City was in the process of extending sewer
service to the annexed area. The plan to deliver sewer service to
the annexed area was part of the City's provision of necessary
sewer services to citizens residing within the City limits.
Portions of the sewer system had already been completed, but theCity wished to extend the sewer system north and east of a
specified road in the annexed area, including an extension through
a portion of the Tuckers' property. The proposed extension would
serve three existing housing subdivisions, several other homes, and
numerous other properties, as well as any future developments.
According to the affidavits, even the Tuckers would potentially
benefit from the extended sewer service. The record contains no
evidence from plaintiffs countering the City's affidavits.
Because numerous property owners, all City residents, will
have the equal right to connect to the expanded sewer system, the
intended use of the Tucker condemnation satisfies the "public use"
, 121 N.C. App. at 719, 468 S.E.2d at 257. As for the
"public benefit" test, this Court has already recognized:
that the provision of expanded sanitary sewer
services is essential to growth and economic
development, which is beneficial to the
community and its citizens, and that such
services are necessities which cannot
generally be provided without governmental
assistance. It follows the provision of sewer
services to a substantial retail shopping
center would contribute to the general welfare
and prosperity of the community, which
benefits from economic growth and, therefore,
satisfies the "public benefit" test.
It is equally undeniable that extension of sewer services to
a newly-annexed area with multiple homes satisfies the "public
benefit" test. See also Charlotte v. Heath
, 226 N.C. 750, 756, 40
S.E.2d 600, 605 (1946) (exercise of power of eminent domain in
order to provide water and sewerage services to small community of
people was for a public benefit).
Plaintiffs rely on City of Statesville v. Roth
, 77 N.C. App.
803, 336 S.E.2d 142 (1985) as support for their claim that thecondemnation is not for a public use or benefit. Our Supreme Court
however, rejected the argument found dispositive in Roth
that since the proposed condemnation would benefit only a single
property owner, it was necessarily for a private purpose. Compare
321 N.C. at 431-33, 364 S.E.2d at 402-03 (involving extension of
telephone service to a single customer) with
77 N.C. App. at 807,
336 S.E.2d at 144 (involving extension of water and sewer system to
single manufacturing plant). We note Roth
predates the Supreme
Court's decision in McLeod.
Regardless, the Roth
plaintiffs offered evidence that the new
water and sewer line would only benefit a single plant located on
property adjoining the condemned property and that the City did not
plan to extend the lines beyond the plant. Here, the City's
evidence establishes that the extension of sewer service is for
three existing subdivisions, several homes, and numerous other
properties, as well as any future developments in a newly-annexed
area. Since this evidence was uncontradicted, the trial court did
not err in entering an order declaring that the Tucker condemnation
was for a public use and public benefit and that it was a
legitimate exercise of the City's power of eminent domain.
Judges TIMMONS-GOODSON and BRYANT concur.