New Hanover Cty. Airport Auth. v Stocks, 163 NC App 610 (03-550) 04/06/2004

Appeal by defendants from judgment entered 9 December 2002 by Judge Ernest B. Fullwood and order entered 29 July 2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 4 February 2004.

New Hanover County, by Assistant County Attorney E. Holt Moore, III, for plaintiff-appellees.

Burrows & Hall, by Richard L. Burrows, for defendant- appellants.

    MARTIN, Chief Judge.

    Defendants appeal from a judgment and order enforcing a mediated settlement agreement between plaintiffs and defendants regarding the condemnation of defendants' real property located in New Hanover County.
    The record discloses that prior to August 2001, defendants were the owners of several parcels of land adjacent to the Wilmington International Airport. A dispute arose between NewHanover County Airport Authority, New Hanover County, and defendant landowners after the County blocked the landowners' access to their property over a narrow strip of land owned by the airport, which lay between the public road and the landowners' property. Litigation ensued in which the County sought to prohibit the landowners from using their normal roadways into their property, and the landowners sought to establish cartways across the airport land into their respective properties. The parties undertook mediation of the controversy and agreed that plaintiffs should either buy defendants' property, if they could agree on a price, or plaintiffs should buy the property through the condemnation process. To determine the value of the property, the parties agreed that the plaintiffs and defendants would each choose an MAI- qualified real estate appraiser. The two appraisers would then select “an impartial” third appraiser. The three appraisers would estimate the property value, taking into account the parties' stipulations. The remainder of the appraisal process was outlined as follows:
        6. The appraisers shall provide their appraisal reports to the parties within thirty days from the date of the appointment of the third appraiser. Upon submission of the appraisal reports to the parties, the parties shall have thirty (30) days from the date of receipt of said reports to either accept or reject the values. The acceptance or rejection shall be in writing, and provided to the attorney of record for the other parties. A failure to respond shall be treated as a rejection of the values.

        7. In the event all parties mutually agree upon the appraised value, the plaintiffs shall purchase the property for that value, andclose the purchase within thirty (30) days of the date of acceptance. County Ad Valorem taxes shall be pro rated as of the date of closing. Sellers shall pay for the preparation of the deed(s) of conveyance, and revenue stamps. Each party shall be responsible for their own attorney fees. The Property shall be conveyed to the County and/or Airport Commission by general warranty deed, free and clear of encumbrances and liens.

        8. In the event the parties are unable to agree upon the appraised value, the plaintiffs shall, within sixty (60) days from and after the rejection, commence condemnation action against the Property.

        8. [sic] In the event of condemnation, either within or after the sixty-day period above set out, the parties agree that the following agreements shall be binding upon all the parties hereto:

        a. The lowest value reported by any of the three appraisers shall constitute the minimum amount that shall be offered in the condemnation, and shall also constitute the lowest amount that the property owners shall be paid in the event a trial should result in a verdict less than the lower amount. The highest value reported by any of the three appraisers shall constitute the highest maximum amount that the County shall be required to pay for the Property, should the trial result in a verdict higher than the highest reported value.

This agreement, entitled “Stipulation of Parties Pursuant to Mediated Settlement Agreement” (Stipulation Agreement) was filed with the trial court on 15 May 2000.
    The plaintiffs selected Hector Ingram as their appraiser, while defendants selected Earl Worsley. Ingram and Worsley then appointed Robert Glenn as the third “neutral” appraiser. Each of the appraisers completed an appraisal report, after which they met.At this meeting, the appraisers decided that they could estimate the property value more accurately if they had a survey of the wetlands located on defendants' property.
    Plaintiffs filed a motion to enforce the Stipulation Agreement on 8 September 2000. The parties agreed that the following terms should be added to those in the Stipulation Agreement:
        1. The appraisers shall reconvene, either by telephonic conference call or in person, and if in person, in a location other than that of one of the parties or their counsel.

        2. Any further identification of criteria, narrowing of issues, or determinations regarding additional information needed, shall be handled at said meeting, and at additional meetings or discussions if necessary. Only the appraisers shall be present at said meeting(s), unless all the appraisers request the presence of counsel and the parties agree.

        3. No member of either side shall contact the appraiser of the other side, nor the neutral appraiser, but may contact only their own, during the time period described herein above.

        4. The appraisers are allowed to select, among themselves, an expert to perform a wetlands delineation, upon such lands as the appraisers deem necessary or appropriate. The parties shall share the expense of said expert.

        5. Consistent with the original agreement, should there be any matter upon which the appraisers cannot agree, the same shall be duly noted on the pertinent appraisal(s), and that appraiser or those appraisers shall proceed to produce an appraisal report and reach a per-acre value.

        6. All other terms of the Stipulation Agreement not superceded by this Order shall remain unaltered.

These terms were recorded in a consent order (Consent Order) filed 6 November 2000.     The appraisers selected Land Management Group, Inc. (LMG) to inspect the property and produce a wetlands report. LMG reported that defendants' property contained 3.01 acres of wetlands and 4.4 acres of transitional wetlands. All three appraisers revised their appraisals according to the information provided in the LMG report. Glenn's 3 April 2001 report valued the property at $700,000, decreased from $800,000 in his original evaluation. Ingram's 30 March 2001 report reduced the property value to $631,000 from his earlier estimate of $680,000. Worsley estimated the property's value to be $825,000 in his 23 April 2001 report, while his earlier report had assigned the land a value of $950,000. Worsley and Ingram both included limiting clauses in their 2001 reports stating that the appraisers could alter their opinion of market value if they received information previously withheld from them or not discovered during a diligent observation.
    Defendants rejected Glenn and Ingram's estimated property values in a 9 April 2001 letter, and offered to sell the property for $42,500 per acre, or $825,000 in total. Defendants' letter stated that plaintiffs had 30 days to accept defendants' counteroffer. Otherwise, pursuant to the Stipulation Agreement, the County should begin condemnation proceedings within sixty days of receiving the letter.
    After the 2001 appraisal reports were completed and defendants had rejected plaintiffs' estimated property values, defendants hired Spangler Environmental, Inc., (Spangler) another wetlands expert, to appraise the subject property. Spangler submitted areport on 4 June 2001 which outlined several flaws in the LMG report. Spangler concluded that LMG had overestimated the total area of wetlands on the property. Spangler calculated a total of 1.83 acres of wetlands on the property, as opposed to the 3.01 acres of wetlands and 4.4 acres of transitional wetlands found by LMG.
    Plaintiffs filed a condemnation proceeding on 10 August 2001, which was after the expiration of the sixty-day filing period allowed by the Stipulation Agreement, and contended that defendants had voluntarily granted plaintiffs an extension of time to file the action. The timing of the condemnation action is not at issue in this appeal. Plaintiffs deposited $631,000 with the trial court simultaneously with filing the condemnation proceeding, which was disbursed to the defendants on 26 August 2001.
    Defendants' appraiser, Worsley, concluded that the Spangler report's delineation of wetlands was more accurate than the LMG report, and, using the Spangler report's calculation of 1.83 acres of wetlands, he produced a third report on 30 March 2002, which valued the property at $1 million. Worsley's 30 March 2002 report also contained the limiting clause indicating that Worsley could change his appraisal if information had been withheld from him or had not been discovered.
    Plaintiffs hired Robert C. Cantwell to appraise the property. Cantwell had access to the LMG and Spangler reports, as well as portions of the other appraisal reports when he created his ownland value estimate for the property. In his 10 July 2002 appraisal, Cantwell valued the property at $665,000.
    Plaintiffs filed a second motion to enforce the Stipulation Agreement on 24 May 2002. Upon hearing that motion, the trial court found that “Hector Ingram, Robert Glenn and Earl Worsley produced appraisal reports on March 31, 2001, April 3, 2001 and April 23, 2001 respectively as their final appraisal reports. . . ,” and that such reports were “final” because the defendants had used the 2001 estimated property values in the 9 April 2001 letter. Defendants' letter triggered the filing of the condemnation litigation according to the Stipulation Agreement. The trial court concluded that the values submitted in the 2001 appraisal reports would set the high and low purchase price of the property as outlined in the Stipulation Agreement. The lowest estimated value in 2001 was $631,000, submitted by Hector Ingram, while the highest value was estimated as $825,000 by Earl Worsley. The trial court concluded that, according to the terms of the Stipulation Agreement, defendants could recover no more than $825,000 and no less than $631,000 for the condemned property, despite any amount of damages awarded to defendants by a jury verdict. The trial court granted the motion to enforce the Stipulation Agreement by order entered 29 July 2002.
    On 7 November, plaintiffs tendered judgment in the amount of $825,000.00. The trial court entered a final judgment enforcing the Stipulation Agreement on 9 December 2002, concluding that plaintiffs had tendered the highest amount defendants couldpossibly recover for their property. Defendants appeal from the 9 December 2002 judgment and the 29 July 2002 order.

    The record on appeal contains eight assignments of error, which are presented in two arguments in defendants' brief. As an initial matter, we note that defendants have violated the North Carolina Rules of Appellate Procedure by failing to state any grounds for appellate review and failing to cite the assignments of error that correspond to each of their arguments. See N.C. R. App. P. 28(b)(4) and 28(b)(6). “The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal.” Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). When an appellant's brief “contains no reference to the assignments of error or exceptions following the statement of the question to which they pertain . . . [this Court] could deem all of appellant's questions to have been abandoned and consequently dismiss his appeal.” State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), disc. rev. denied, 305 N.C. 306, 290 S.E.2d 707 (1982). However, in order to expedite the resolution of this dispute, we exercise our discretion to suspend the Rules of Appellate Procedure for this appeal as allowed by Rule 2. See N.C. R. App. P. 2.
    Defendants argue that the trial court erred by (1) finding that the Stipulation Agreement and Consent Order outlined the method for determining the highest and lowest values of defendants' property, (2) finding that the Stipulation Agreement and ConsentOrder resolved any disputes regarding the wetlands assessment, (3) finding that Worsley's 23 April 2001 report was submitted as his final report, (4) concluding that defendants were bound by Worsley's 23 April 2001 value estimate, (5) concluding that defendants could not amend or alter the 23 April 2001 report and (6) setting defendants' maximum recovery at $825,000. We reject defendants' arguments and affirm the trial court's order and judgment.
    In general, “settlement of claims is favored in the law, and [] mediated settlement as a means to resolve disputes should be encouraged and afforded great deference.” Chappell v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 500 (internal citations omitted), rh'g denied, 354 N.C. 75, 553 S.E.2d 36 (2001). Our Supreme Court has indicated that compromise agreements, such as the Stipulation Agreement and Consent Order in this case, “are governed by general principles of contract law.” Chappell, 353 N.C. at 692, 548 S.E.2d at 500 (citing McNair v. Goodwin, 262 N.C. 1, 136 S.E.2d 218 (1964)); also see Harris v. Ray Constr. Co., 139 N.C. App. 827, 534 S.E.2d 653 (2000). “When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law. The court determines the effect of their agreement by declaring its legal meaning. . . .” Bicycle Transit Authority v. Bell, 314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985)(quoting Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624 (1973)). Since contract interpretation is a question oflaw, an appellate court should apply a de novo standard of review to a trial court's conclusions of law. See Harris, 139 N.C. App. at 829, 534 S.E.2d at 654.
    “If the contract is clearly expressed, it must be enforced as it is written, and the court may not disregard the plainly expressed meaning of its language.” McClure Lumber Co. v. Helmsman Constr. Co., ___ N.C. App. ___, ___, 585 S.E.2d 234, 238 (2003)(quoting Catawba Athletics v. Newton Car Wash, 53 N.C. App. 708, 712, 281 S.E.2d 676, 679 (1981)). “If it can be plainly seen from all the provisions of the instrument taken together that the obligation in question was within the contemplation of the parties when making their contract or is necessary to carry their intention into effect, the law will imply the obligation and enforce it.” Bicycle Transit, 314 N.C. at 227, 333 S.E.2d at 304 (quoting Lane v. Scarborough, 284 N.C. at 410, 200 S.E.2d at 625 (1973)). “[A] valid contract exists only where there has been a meeting of the minds as to all essential terms of the agreement. . . .” Harris, 139 N.C. App. at 830, 534 S.E.2d at 655 (citing Northington v. Michelotti, 121 N.C. App. 180, 464 S.E.2d 711 (1995)). “If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement.” Chappell, 353 N.C. at 692, 548 S.E.2d at 500 (quoting Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974)).
    No party in the present appeal contends that the agreement between them was ambiguous. Instead, defendants argue that the Stipulation Agreement and Consent Order did not provide a method ofensuring that the property appraisals would be based upon the most accurate wetlands delineation. Defendants contend that enforcement of the Stipulation Agreement and Consent Order does not require the court to use the 2001 property appraisal values. We find defendants' arguments unpersuasive.
    Defendants argue that the limiting clause in Worsley's 2001 report indicates that his report was not final. A similar limiting clause appears in most of the appraisal reports contained in the record on appeal. The prevalence of these clauses indicates that they are intended to shield the appraiser from liability to his client rather than to express distrust of information provided to the appraiser during the evaluation process. In addition, Worsley did not note in his 23 April 2001 report that he questioned the accuracy of the LMG wetlands survey. Therefore, the evidence supported the trial court's finding that the 23 April 2001 report was “final”.
    The Stipulation Agreement clearly outlines the parties' agreement on a method to determine the property's value and set the maximum and minimum recoverable prices in the condemnation lawsuit. After determining the wetlands on the property would affect the market value, the parties agreed to amend their earlier Agreement by adding the terms within the Consent Order. The Consent Order contained the parties' agreement regarding a method for hiring an expert to estimate the area of wetlands on the property and how that estimate would be used in the property appraisals. LMG completed the wetlands report and the appraisers submitted revisedproperty appraisals. Rather than objecting to the accuracy of the LMG report, or attempting to amend the Stipulation Agreement and Consent Order, defendants followed the procedure outlined in the Stipulation Agreement to reject plaintiffs' offered purchase price. This rejection, according to the terms of the Stipulation Agreement, set the condemnation proceeding into motion. Defendants objected to the accuracy of the LMG wetlands survey after the opportunity to amend the parties' agreement had passed. Defendants' contract with the plaintiffs bound them to accept the 2001 appraisals and to allow those appraisals to set the maximum and minimum recovery amounts. The trial court's findings of fact were supported by the evidence, which clearly showed that defendants agreed to the terms of the contract in the Stipulation Agreement and the Consent Order.
    The trial court's findings of fact in both the 29 July 2002 order and the 9 December 2002 judgment are supported by the evidence. In turn, those findings of fact support the trial court's conclusions of law. Therefore, the 29 July 2002 order and 9 December 2002 judgment are affirmed.
    Affirmed.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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