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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
1. Highways and Streets--closing public road--statutorily mandated de novo hearing--
burden of proof
The trial court did not err by placing the burden on appellant to illustrate the board of
county commissioners correctly determined that closing the roads in Ocean Hill I to the general
public was not contrary to the public interest, because: (1) the burden of proof was initially
placed on appellant who sought to change the status of Ocean Hill I roads from public to private;
and (2) pursuant to a statutorily mandated de novo hearing, the burden of proof remained with
appellant.
2. Highways and Streets--closing public road--directed verdict--more than a scintilla of
evidence
A de novo review revealed that the trial court did not err by denying appellant's motion
for directed verdict in an action seeking to close Ocean Hill I roads to the general public,
because: (1) appellant's repeated incorrect arguement concerning the burden of proof is
unavailing on this issue as well; and (2) a petitioner's testimony that closing Ocean Hill I roads
would deprive her of a safe route to the beach was not only more than a scintilla of evidence
supporting appellees' assertion that closing these roads is contrary to the public interest, but also
is conflicting testimony favorable to appellees precluding the granting of appellant's motion for
directed verdict.
3. Highways and Streets--closing public road--instructions--burden of proof--questions
of public interest
The trial court did not submit an incorrect burden of proof to the jury in an action seeking
to close Ocean Hill I roads to the general public and did not improperly empower the jury to
determine a question of law, because: (1) the Court of Appeals has already held that the burden
of proof was correctly placed on appellant; (2) appellant never objected to the submitted jury
instruction in the final pretrial conference order, and appellant submitted the exact question to the
jury in its requested jury instruction; and (3) our Supreme Court has ratified the ability of juries
to deliberate upon questions of public interest.
C. Everett Thompson, II, for petitioners-appellees.
Katherine F. McKenzie for respondent-appellee.
The North Carolina Association of County Commissioners, by
James B. Blackburn, III, amicus curiae.
Robinson, Bradshaw & Hinson, P.A., by John R. Wester and
Jonathan C. Krisko and Trimpi & Nash, LLP, by Thomas P. Nash,
IV, and John G. Trimpi, for respondent-appellant.
CALABRIA, Judge.
Ocean Hill I Property Owners Association (“appellant”) appeals
the judgment entered upon a jury verdict determining the closing of
the public roads and streets in Section 1 of the Ocean Hill
Subdivision (“Ocean Hill I”) to the general public was contrary to
the public interest. Appellant also appeals the court's order
denying their motion for a new trial. We find no error.
In the late 1970's in Currituck County, Ocean Hill Joint
Venture (“Joint Venture”) and Ocean Hill Properties, Inc.
(“Properties”) (collectively “the petitioners”) developed a
residential subdivision (“the subdivision”), which included Ocean
Hill I. The recorded plat for Ocean Hill I (“the Ocean Hill I
plat”) identified eight residential roads (“Ocean Hill I roads”),
three to provide beach access and three to connect other future
planned developments within the subdivision. The Ocean Hill I plat
“dedicate[d] all streets, alleys, walks, parks, and other open
space to public or private use as noted.” However, the Ocean Hill
I plat failed to identify which streets were public and which wereprivate. Appellant asserts, and the petitioners disagree, that
despite the ambiguity in the plat whether Ocean Hill I roads were
designated for public or private use, these roads had been private
in character since the subdivision's inception. In the early
1990's, Ocean Hill I property owners asked Joint Venture to repair
the roads due to wear and tear. On 24 March 1993, pursuant to an
agreement, Joint Venture conveyed title to the roads to appellant
and appellant agreed to repair and insure the roads. Since 1993,
appellant repaired, maintained, and insured Ocean Hill I roads.
In 1989, construction in a new development named the Villages
at Ocean Hill (“the Villages”) surrounding Ocean Hill I dead-ended
three Ocean Hill I roads previously designated to connect Ocean
Hill I to future developments in the subdivision. The only access
for Ocean Hill I residents was limited to North Carolina Route 12,
a public highway passing through the Villages and connecting to
Coral Lane, one of the eight original roads platted in Ocean Hill
I. As a result, disputes arose regarding the increase in the
number of non Ocean Hill I residents using their roads.
On 6 September 2001, appellant requested the Board withdraw
Joint Venture's dedication of Ocean Hill I roads and close them to
the public, pursuant to N.C. Gen. Stat. § 153A-241. On 7 October
2002, following a public hearing, the Board approved a resolution
to withdraw the dedication of Ocean Hill I roads. On 4 November
2002, subsequent to the public hearing, the Board voted unanimously
to close the roads. Specifically, they explained that “closing ...
the roads would not be contrary to the public interest and wouldnot deprive any individual owning property in the vicinity of the
roads reasonable means of ingress and egress to his property.” On
the same day, the Board approved an order to close Ocean Hill I
roads to the general public.
On 27 November 2002, pursuant to N.C. Gen. Stat. § 153A-241,
petitioners appealed the Board's order by filing a writ of
certiorari in Currituck County Superior Court. Petitioners alleged
closing Ocean Hill I roads to the general public “[was] against and
contrary to the public interest” and claimed they were “persons
aggrieved” by the order. On 3 December 2002, pursuant to N.C. Gen.
Stat. . 153A-241, the trial court ordered the Board to certify the
complete record resulting in the 4 November 2002 order. On 6
February 2003, appellant filed an answer to petitioners' writ and
requested a jury trial.
At trial, two members of the Currituck County Board of
Commissioners (“the Board”) and a law enforcement officer testified
for appellant. Commissioner Paul O'Neal referred to Ocean Hill I
and stated, “[a] subdivision that is going to be open to the public
... is required to have more than one ingress and egress ... [and
the Board] would require some parking for the general public.” The
second member of the Board to testify, James Etheridge, explained,
“there [are] no parking areas ... [,] there is no off street
parking ... [,] [and] [t]here is only one entrance and exit[.]”
Finally, Sheriff Susan Johnson (“Sheriff Johnson”) of Currituck
County focused on safety issues not only because of congestion butalso because Ocean Hill, Section 1 “is so difficult to traverse, I
think that public safety outweighs public interest in some cases.
At trial, Gerald Friedman, a land developer involved with the
subdivision, testified for the petitioners. He explained the roads
in Ocean Hill I were to be public, the State was to eventually take
over the roads, and the conveyance of the roads to appellant in
1993 was not intended to give away public access. Hood Ellis, an
attorney who represented Gerald Friedman in the development of the
subdivision, also testified for the petitioners. He said “[Ocean
Hill] was always going to be a public subdivision. In other words,
the neighborhood just like I live in. We have residential platted
lots on public streets.” Several residents of the Villages also
testified. One of the petitioners, Rosalee Chiara, had safety
concerns if the roads in Ocean Hill, Section 1, were made private.
She was not concerned about getting to and from her home but was
concerned about being deprived “of getting to and from the beach
safely.”
At the conclusion of the evidence, both petitioners and
appellant moved for a directed verdict and the trial court denied
each motion. The jury determined closing Ocean Hill I roads to the
general public was contrary to the public interest. Appellant's
motion for a new trial was denied. Appellant appeals the judgment
entered upon the jury verdict and order denying the motion for a
new trial.
I. Burden of Proof: [1] Appellant argues the trial court erred by placing the
burden on them to illustrate the Board correctly determined that
closing the roads in Ocean Hill I was not contrary to the public
interest. Appellant contends the trial court placed the burden of
proof upon the wrong party. We disagree.
a. De novo hearing:
N.C. Gen. Stat. § 153A-241 (2005), in pertinent part, states
Any person aggrieved by the closing of a
public road or an easement may appeal the
board of commissioners' order to the
appropriate division of the General Court of
Justice within 30 days after the day the order
is adopted. The court shall hear the matter de
novo and has jurisdiction to try the issues
arising and to order the road or easement
closed upon proper findings of fact by the
trier of fact.
(emphasis added). “'The word de novo means fresh or anew; for a
second time[.]'” Caswell County v. Hanks, 120 N.C. App. 489, 491,
462 S.E.2d 841, 843 (1995) (citing In Re Hayes, 261 N.C. 616, 622,
135 S.E.2d 645, 649 (1964)). “A court empowered to hear a case de
novo is vested with full power to determine the issues and rights
of all parties involved, and to try the case as if the suit had
been filed originally in that court.” Id. (citation and internal
quotation marks omitted). In fact, as in the instant case, “a de
novo hearing or trial conducted pursuant to a specific statutory
mandate requires judge or jury to disregard the facts found in an
earlier hearing or trial and engage in independent fact-finding.”
N.C. Dep't of Envtl. & Natural Res. v. Carroll, 358 N.C. 649, 661,
599 S.E.2d 888, 895 n.3 (2004) (emphasis added). In Hanks, supra,
this Court determined that “[t]he plain language of N.C. Gen. Stat.§ 67-4.1(c)
(See footnote 1)
... requires that the superior court must hear the
case on its merits from beginning to end as if no hearing had been
held by the Board and without any presumption in favor of the
Board's decision.” Hanks, 120 N.C. App. at 491, 462 S.E.2d at 843
(emphasis added). Similarly, in the instant case, N.C. Gen. Stat.
§ 153A-241 mandates a de novo hearing by the superior court for an
appeal of a county board order to close a public road. Thus, the
trial court properly held a de novo hearing respecting the
determination of the Board to close Ocean Hill I roads.
Pursuant to the statutorily mandated de novo hearing and Hanks
and Carroll, supra, there is no presumption in favor of a lower
tribunal's determination and, furthermore, the burden of proof
remains on the party who shouldered the burden at the lower
tribunal. “Since the hearing on appeal in the Superior Court was
de novo, if the [appellant] had the burden of proof at the first
hearing, obviously [they] also had the burden at the de novo
hearing in the Superior Court.” Joyner v. Garrett, 279 N.C. 226,
236, 182 S.E.2d 553, 560 (1971). Consequently, the trial court
correctly determined that the burden of proof, initially placed
upon the appellant because they sought to change the status of
Ocean Hill I roads from public to private, remained on theappellant for the trial de novo. Thus, pursuant to a de novo
hearing, we hold the burden of proof remained with the appellant
and overrule appellant's corresponding assignments of error numbers
one, five, six, and seven.
II. Directed Verdict:
[2] Appellant argues the trial court erred in denying their
motion for directed verdict. Appellant contends appellees failed
to present any evidence to support the jury verdict. We disagree.
“The party moving for a directed verdict 'bears a heavy burden
under North Carolina law.'” Ligon v. Strickland, 176 N.C. App.
132, 135, 625 S.E.2d 824, 827-28 (2006) (citing Martishius v.
Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892
(2002) (quoting Taylor v. Walker, 320 N.C. 729, 733, 360 S.E.2d
796, 799 (1987)). “The standard of review for a motion for
directed verdict is whether the evidence, considered in a light
most favorable to the non-moving party, is sufficient to be
submitted to the jury.” Herring v. Food Lion, LLC, 175 N.C. App.
22, 26, 623 S.E.2d 281, 284 (2005), aff'd, 360 N.C. 472, 628 S.E.2d
761 (2006). “A motion for directed verdict should be denied if
more than a scintilla of evidence supports each element of the
non-moving party's claim.” Id. “Moreover, if there is conflicting
testimony that permits different inferences, one of which is
favorable to the non-moving party, a directed verdict in favor of
the party with the burden of proof is improper.” Long v. Harris,
137 N.C. App. 461, 465-66, 528 S.E.2d 633, 636 (2000) (emphasis
added) (citing United Lab., Inc. v. Kuykendall, 322 N.C. 643, 662,370 S.E.2d 375, 386 (1988)) . “This Court reviews a trial court's
grant of a motion for directed verdict de novo.” Herring, 175 N.C.
App. at 26, 623 S.E.2d at 284. In the instant case, appellant's
entire argument is premised upon the identical rationale overruled
above, namely, that the burden of proof was placed upon the wrong
party. We previously determined, in section one of this opinion,
that pursuant to a statutorily mandated de novo hearing, the burden
of proof remained on the appellant because they shouldered the
initial burden when the Board first convened to determine whether
or not to close Ocean Hill I roads. Nevertheless, appellant
alleges in their brief that the burden was on the petitioners to
prove the Board's decision to close Ocean Hill I roads was
incorrect and absent such supporting evidence, the trial court's
denial of their directed verdict motion was in error. This
repeated argument remains unavailing here and, moreover, pursuant
to Long, supra, the testimony of petitioner Rosalee Chiara, that
closing Ocean Hill I roads would deprive her of a safe route to the
beach is not only more than a scintilla of evidence supporting
appellees' assertion that closing these roads is contrary to the
public interest, but also is “conflicting testimony” favorable to
appellees precluding the granting of appellant's motion for
directed verdict. See Murdock v. Ratliff, 310 N.C. 652, 659, 314
S.E.2d 518, 522 (1984) (stating “in order to justify granting a
motion for a directed verdict in favor of the party with the burden
of proof, the evidence must so clearly establish the fact in issue
that no reasonable inferences to the contrary can be drawn.”) Thus, appellant's corresponding assignments of error numbers two
and three are overruled.
III. Jury Instructions:
[3] Appellant argues the trial court erred by submitting the
incorrect burden of proof to the jury. We disagree. “On appeal,
this Court considers a jury charge contextually and in its
entirety.” Hughes v. Webster, 175 N.C. App. 726, 730, 625 S.E.2d
177, 180 (2006) (emphasis added). “The charge will be held to be
sufficient if 'it presents the law of the case in such manner as to
leave no reasonable cause to believe the jury was misled or
misinformed[.]'” Id. 175 N.C. App. at 730, 625 S.E.2d at 180-81
(quoting Jones v. Satterfield Development Co., 16 N.C. App. 80, 86-
87, 191 S.E.2d 435, 440 (1972)). “The party asserting error bears
the burden of showing that the jury was misled or that the verdict
was affected by an omitted instruction.” Id. 175 N.C. App. at 730,
625 S.E.2d at 181. “A trial court must give a requested
instruction if it is a correct statement of the law and is
supported by the evidence.” State v. Haywood, 144 N.C. App. 223,
234, 550 S.E.2d 38, 45 (2001) (emphasis added).
Appellant's proposed instruction states, in pertinent part,
“[t]he issue for you to determine is whether that closing was
contrary to the public interest.” The instruction concludes “[o]n
this issue the petitioners have the burden of proof. As I have
instructed you earlier, this means that the petitioners are
required to prove, by the greater weight of the evidence, the
existence of those facts which would entitle them to a favorableanswer to the issue.” We previously determined in parts one and
two of this opinion the burden of proof was correctly placed on
appellant. Therefore, we reject appellant's assertion that the
burden of proof should have been placed upon appellees according to
their jury instructions because it is an incorrect statement of the
law. Appellant also asserts the trial court erred by empowering
the jury to determine a question of law. Specifically, appellant
argues the issue determining whether closing Ocean Hill I roads was
contrary to the public interest was not a question of fact for the
jury but a question of law for the court. However, in the final
pre-trial conference order the appellant never objected to the
submitted jury instruction. More importantly, appellant submitted
the exact question to the jury in their requested jury instruction.
Furthermore, in Utilities Com. v. Carolina Scenic Coach Co., 218
N.C. 233, 239-40, 10 S.E.2d 824, 828 (1940) our Supreme Court
ratified the ability of juries to deliberate upon questions of
public interest. We overrule appellant's assignments of error
numbers four, eight and nine.
No error.
Judges McCULLOUGH and STEELMAN concur.
Footnote: 1
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