MECKLENBURG COUNTY,
NORTH CAROLINA,
Plaintiff,
v
.
Mecklenburg County
Nos. 02 CVS 14113
ROZUMNY DEVELOPMENT, 02 CVS 16417
LLC,
Defendant.
Helms Mullis & Wicker, P.L.L.C., by James G. Middlebrooks, for
plaintiff.
Griffin, Brunson & Perle, L.L.P., by Scott I. Perle, for
defendant.
HUDSON, Judge.
This appeal arises from an eminent domain proceeding involving
forty-two acres of undeveloped real property owned by defendant
Rozumny Development, LLC. Defendant's property included two
contiguous parcels, one previously owned by Thomas and Karen
Ferrell, and Wilson D. Johnston (“the Ferrell parcel”), and another
previously owned by Henry and Kathy Cox (“the Cox parcel”). The
Ferrell parcel was taken by plaintiff Mecklenburg County (“the
County”) by issuance of a civil summons and the filing of a
complaint, declaration of taking and notice of deposit filed withthe superior court on 30 July 2002. The Cox parcel was taken by
the County by issuance of a civil summons and the filing of a
complaint, declaration of taking and notice of deposit filed with
the superior court on 6 September 2002. A jury reached a verdict
setting the amount of compensation for each parcel, and trial court
entered judgment thereon 11 March 2004. Defendant appeals. For
the reasons discussed below, we affirm.
During 1999 and 2000, the City of Charlotte undertook a
revision of its land use plan. Defendant, the Ferrells and the
Coxes, along with all landowners in the area were notified of the
process, which ultimately encouraged the development of a park in
the area of these parcels. In 2000, plaintiff expressed an
interest in purchasing both the Ferrell and Cox parcels, but could
not come to terms. Plaintiff then notified the Coxes and Ferrells
that it intended to condemn their parcels for park use. In late
2000 and early 2001, the Coxes and Ferrells entered into sales
contracts with defendant for their parcels, including a contingency
that the parcels be rezoned. Following the sale, defendant and
plaintiff engaged in discussions about locating the park elsewhere
and rezoning the parcels, but were unable to reach an agreement.
On 28 January 2002, the City of Charlotte adopted a plan to
continue creating a park, and noted that if the park was not
created, the area should be zoned for no higher density than R-4.
On 25 March 2002, defendant filed a petition for rezoning of the
parcels as MF-6, a higher-density, multi-family designation.
Defendant closed on its contracts with the Ferrells and Coxes,dropping the rezoning contingency in exchange for a reduced price.
The Zoning Commission ultimately recommended denial of the
petition, and the City Council upheld this recommendation and began
condemnation proceedings.
Defendant first argues that the court erred in denying its
motion in limine to exclude the testimony of an expert witness. We
disagree.
Defendant contends that the County did not identify Bruce
Tomlin, one of its expert witnesses, until after the deadline set
by the scheduling order in this case. The County identified Mr.
Tomlin as an expert witness two weeks prior to trial. Defendant
filed a motion in limine to exclude Mr. Tomlin's testimony, which
the court denied. Defendant asserts that the denial was an abuse
of the court's discretion and prejudiced its case.
We begin by noting that defendant fails to cite any authority
in its brief regarding this argument. In addition, defendant
raised no objection at trial to Mr. Tomlin's testimony. Our Courts
have long held that “a motion in limine is not sufficient to
preserve for appeal the question of admissibility of evidence if
the defendant does not object to that evidence at the time it is
offered at trial.” State v. Roache, 358 N.C. 243, 292, 595 S.E.2d
381, 413 (2004). The General Assembly attempted to amend Rule
103(a) of the North Carolina Rules of Evidence, for rulings made on
or after 1 October 2003, to provide that “a party need not renew an
objection or offer of proof to preserve a claim of error for
appeal.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004). This Court has recently held that “to the extent that N.C.
Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App.
P. 10(b)(1), it must fail.” State v. Tutt, __ N.C. App. __, __,
615 S.E.2d 688, 692-93 (2005). N.C. R. App. P. 10(b)(1) states:
“In order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context.” However, to prevent “injustice to Defendant .
. . after he relied on a procedural statute that was presumed
constitutional at the time of trial” we may review the evidence at
our discretion. Tutt, __ N.C. App. at __, 615 S.E.2d at 693; N.C.
R. App. P. 2.
“The trial court has wide discretion in making this advance
ruling [on a motion in limine] and will not be reversed absent an
abuse of discretion.” Heatherly v. Industrial Health Council, 130
N.C. App. 616, 619, 504 S.E.2d 102, 105 (1998). “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) (internal quotation marks and citation
omitted). Here, the County's previously designated expert witness
became ill before trial and was excused by the trial court. After
Mr. Tomlin was identified, the court instructed that the County
make Mr. Tomlin available at its own expense for deposition bydefendant, which the County did immediately. The court did not
abuse its discretion by allowing Mr. Tomlin's testimony in these
circumstances.
Defendant next argues that the court erred in excluding
testimony of defendant's witness Richard Ferrell about the basis of
the sales price of one of the parcels. We disagree.
Richard Ferrell is the brother of Thomas Ferrell, one of the
prior owners of the Ferrell parcel. Richard Ferrell testified at
trial about the price of the parcel sold to defendant, but
plaintiff contends that Richard Ferrell was not allowed to state
that the reduction of the contract price was “related to the zoning
and subsequently the price.” However, the transcript reveals the
following testimony during Richard Ferrell's direct examination:
Q: When the property closed as of May 30,
2002, the price had been reduced_is it correct
that the property price had been reduced from
$1.3 million to $1 million?
A: Yes, sir.
Q: and did the pendency of the rezoning have
anything to do with the reduction of that
price?
[Plaintiff's counsel]: Objection.
The Court: Overruled.
The Witness: Yes, sir.
Q: Did the potential for rezoning or for not
to be rezoned as of May 30, 2002 have any
impact on the reduction of the price?
[Plaintiff's counsel]: Objection; that calls
for hearsay, Judge.
The Court: Overruled. The Witness: Yes, sir. We felt like that the
circumstances that had developed in recent
months reduced the likelihood of that being
rezoned. For other reasons, we were trying to
close on that property, too.
This exchange reveals that Richard Ferrell was permitted to testify
about the relation between the rezoning and price paid for the
parcels. In addition, defendant contends that Richard Ferrell was
not allowed to testify that the price of the parcel was reduced “as
a result of the threatened condemnation and the resistence . . .
received from the City of Charlotte Planning Commission to rezone
the property . . . .” However, defendant failed to ask Richard
Ferrell about the threatened condemnation, and thus, has failed to
preserve the testimony in an appropriate proffer. We overrule this
assignment of error.
Defendant also argues that the court erred in barring
testimony regarding the individual zoning committee vote of Michael
Bruno regarding the parcels. We disagree.
Defendant sought to present testimony from zoning committee
member Michael Bruno about the basis for his personal vote
regarding the rezoning of the parcels. The court excluded such
testimony, ruling that the condemnation trial was not the proper
forum for attacking the rezoning denial. Defendant acknowledges in
its brief that a statutory mechanism exists for making such a
challenge, and that it actually filed such a complaint. “The
standard of review for this Court assessing evidentiary rulings is
abuse of discretion.” State v. Boston, 165 N.C. App. 214, 218, 598S.E.2d 163, 166 (2004). We see no abuse of discretion by the trial
court here.
Defendant also argues that the court erred in excluding the
testimony of defendant's witness Garet Walsh-Johnson about
instructions given to staff members of the planning commission. We
disagree.
Defendant's proffer indicated that Ms. Walsh-Johnson would
testify about the criteria that would be used if the park was not
built and defendant applied again for rezoning, criteria based on
the original land use plan. However, Ms. Walsh-Johnson stated that
the planning commission staff did not follow the instructions,
instead working with the new land use plan. Defendant's brief does
not explain what effect, if any, the change had on the appraisal of
defendant's property. “The standard of review for this Court
assessing evidentiary rulings is abuse of discretion.” Boston, 165
N.C. App. at 218, 598 S.E.2d at 166. Defendant has failed to show
that the court abused its discretion in excluding Ms. Walsh-
Johnson's testimony.
Defendant next argues that the court erred in excluding the
testimony of proposed witnesses related to the alleged insertion of
language into the land use plan. We dismiss this assignment of
error for violations of the Rules of Appellate Procedure.
“The North Carolina Rules of Appellate Procedure are mandatory
and 'failure to follow these rules will subject an appeal to
dismissal.'” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610
S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C.64, 65, 511 S.E.2d 298, 299 (1999)). Defendant simply states what
testimony the jury was not permitted to hear, but cites no
authority to explain why this might be erroneous, and thus has
failed to preserve this error for our review. N.C. R. App. P.
28(b)(6) (“Assignments of error not set out in the appellant's
brief, or in support of which no reason or argument is stated or
authority cited, will be taken as abandoned.”)
In its final argument, defendant contends that the court erred
in excluding the testimony of defendant's witness Forrest Earl Todd
and two exhibits relating to the sale of surplus dirt from the
parcels. We disagree.
Mr. Todd, principal officer of defendant corporation,
testified about the value of the property taken by plaintiff.
Defendant contends it was error for the court to exclude Mr. Todd's
testimony about the separate value of “surplus” dirt on the
property and also to exclude the admission of two exhibits relating
to offers to purchase the surplus dirt. However, the trial
transcript reveals that the court did not exclude Mr. Todd's
testimony about the value of surplus dirt. Following the proffer
of the two exhibits, the court and defendant's counsel engaged in
the following exchange:
[Defendant's counsel]: In light of the
sustaining of the objections to these two
pieces of evidence, it appears that the Court
is not going to allow the value of the dirt to
come in.
The Court: I didn't say that. I am sustaining
the objection to the contract and the
purchasing order.
***
The Court: I did not say I will not allow
evidence of the value of the dirt.
This colloquy shows that Mr. Todd's testimony was not excluded by
the court. This assignment of error is overruled.
The two exhibits which the court did exclude were offers by
companies to purchase the surplus dirt. Defendant cites City of
Hillsborough v. Hughes, for the proposition that “testimony
regarding the enhancing components of the land is that which any
informed appraiser or purchaser would necessarily consider in
ascertaining the fair market value of property . . .[and] the jury,
in determining fair market value, should also be made aware of such
enhancing components.” 140 N.C. App. 714, 718, 538 S.E.2d 586, 588
(2000). However, “[a] mere offer to buy or sell property is
incompetent to prove its market value. The figure named is only
the opinion of one who is not bound by his statement and it is
[too] unreliable to be accepted as a correct test of value.” North
Carolina State Highway Comm'n v. Helderman, 285 N.C. 645, 655, 207
S.E.2d 720, 727 (1974). Here, the two exhibits were mere offers,
unlike the evidence in Hughes, which was an appraisal. Hughes, 140
N.C. App. at 716, 538 S.E.2d at 587. Thus, while testimony about
enhancing components is entirely appropriate, the form and nature
of defendant's exhibits rendered them inadmissible.
Affirmed.
Judge TIMMONS-GOODSON concurred prior to 31 October 2005;
Judge ELMORE concurs.
Report per Rule 30(e).
*** Converted from WordPerfect ***