An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1423


Filed: 3 January 2006


v .                         Beaufort County
                            No. 01 CVS 657

    Appeal by defendant from judgment entered 19 April 2004 by Judge Quentin T. Sumner in Beaufort County Superior Court. Heard in the Court of Appeals 20 September 2005.

    Rodman, Holscher, Francisco & Peck, P.A., by R. Brantley Peck, Jr., for plaintiff-appellee.

    M. Jason Williams for defendant-appellant.

    GEER, Judge.

    Plaintiff City of Washington, North Carolina ("the City") initiated a condemnation action in Beaufort County Superior Court for the purpose of taking certain property of defendant Robin R. Moore for permanent and temporary drainage easements. In his answer denying the material allegations of the complaint, Moore also asserted counterclaims for damage to his property and trespass.
    Moore appeals from an order granting summary judgment to the City, concluding that Moore was entitled to only $12,250.00 as compensation for the easements and dismissing Moore's remaining claims with prejudice. Because we conclude, based upon our reviewof the record, that there were disputed issues of material fact regarding the diminution in the value of Moore's property as a result of the taking of the easements, we reverse the order to the extent that it determined that Moore was only entitled to receive $12,250.00 and remand for further proceedings on that issue.


    In June 2001, the City filed a complaint pursuant to N.C. Gen. Stat. § 40A-3(b)(3) (2001) declaring that the City was taking certain portions of Moore's real property for permanent and temporary drainage easements in order to improve drainage within the City. The complaint estimated that Moore was entitled to $9,774.97 as compensation for this taking. In August 2001, Moore filed an answer denying that the City's estimate of just compensation was adequate and asserting two counterclaims.
    While the record reveals that Moore was somewhat recalcitrant in providing discovery, he served answers to the City's first set of interrogatories on 10 April 2002 and answers to the City's second set of interrogatories on 23 June 2003. A month later, on 24 July 2003, Moore's attorney was permitted to withdraw. Moore thereafter proceeded pro se and was unrepresented at his 24 October 2003 deposition.
    In February 2004, the City moved for summary judgment or, in the alternative, for an order compelling discovery. In support of its motion for summary judgment, the City attached an affidavit from a real estate appraiser stating that the diminution in value of Moore's property as a result of the taking was $12,250.00. TheCity argued that no genuine issues of material fact remained because Moore had not provided a contrary appraisal and had refused to provide any other estimates of the diminution in value. With respect to discovery, the City contended that Moore had been evasive during his deposition and refused to turn over discoverable information.
    Superior Court Judge Kenneth F. Crow entered an order finding that Moore had given incomplete or evasive answers at his deposition and that he had not provided the City with the "necessary information requested through discovery . . . ." He ordered (1) that Moore provide the City by 24 March 2004 with certain additional information regarding his property and (2) that Moore provide the City by 24 May 2004 with the name and address of any appraiser that Moore hired, along with a copy of a certified appraisal. Judge Crow continued the City's motion for summary judgment "until re-noticed" by the City.
    On 24 March 2004, the City received an unsworn letter from Moore reiterating his answers to the City's second set of interrogatories as his estimate of the diminished value of his property and providing certain additional information regarding damages, but refusing to provide information that Moore deemed irrelevant to the litigation. On 6 April 2004, the City filed a motion for sanctions and attorney's fees and re-noticed its motion for summary judgment for hearing on 19 April 2004.      On 19 April 2004, Judge Quentin T. Sumner granted the City's motion for summary judgment, concluding that "there [were] no issues of material fact" and ordering that the City:
        have Summary Judgment against [Moore] and that the $12,250.00 deposited by [the City] into the Court is an appropriate award for compensation to [Moore] for the subject matter of this lawsuit, the Clerk of Court shall forward said funds to [Moore] and any remaining claims by [Moore] are dismissed with prejudice.

No order was entered regarding the City's motion for sanctions and attorney's fees. Moore has timely appealed from the grant of summary judgment.

    Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, N.C.R. Civ. P. 56(c) (2003). We review a trial court's grant of summary judgment de novo. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 340-41, 601 S.E.2d 915, 920 (2004).
    In this appeal, Moore argues only that the trial court erred in concluding that no issue of fact existed regarding his property's diminution in value as a result of the City's taking. Although Judge Sumner's order dismissed Moore's counterclaims with prejudice, Moore has not challenged that portion of the order on appeal. Accordingly, the sole issue before this Court is whethergenuine issues of material fact exist regarding the amount of compensation due to Moore as a result of the taking.
    When a City takes private property through eminent domain under N.C. Gen. Stat. § 40A-3(b) (2003), the aggrieved party is entitled to "just compensation" as determined by N.C. Gen. Stat. § 40A-64 (2003). If the property taken is less than the entire tract, just compensation is the greater of (1) the amount by which the fair market value of the entire tract immediately before the taking exceeds the fair market value of the remainder immediately after the taking, or (2) the fair market value of the property taken. N.C. Gen. Stat. § 40A-64(b). In this case, the City and Moore both assume that the proper measure of damages is the first method of valuation, reflecting the diminution in the value of Moore's land.
    In support of its motion for summary judgment, the City submitted an appraiser's affidavit stating that the diminution in value equaled $12,250.00. The City claims that Moore did not dispute this valuation "by sworn testimony or affidavit, or in a timely fashion." In Moore's answers to the City's second set of interrogatories, however, Moore provided his estimates of the fair market value of his property both immediately before ($570,000.00 to $665,000.00) and immediately after ($380,000.00 to $475,000.00) the taking and explained his rationale in arriving at these amounts. Moore, therefore, claimed the diminution in value to hisproperty as a result of the taking to be $190,000.00.   (See footnote 1)  The City does not explain why Moore's answers to the second set of interrogatories are inadequate to raise an issue of fact.
    The fact that Moore did not have an expert real estate appraiser, but the City did, is irrelevant. Expert witnesses are not required to establish the fair market value of property. See, e.g., Craven County v. Hall, 87 N.C. App. 256, 260-61, 360 S.E.2d 479, 481 (1987) (permitting owner's son, who was familiar with the property in question and with the values of neighboring properties, to testify as to the value of his father's property before and after a taking), disc. review denied, 321 N.C. 471, 364 S.E.2d 919 (1988); Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275 ("Any witness, not necessarily an expert, may give his opinion of the value of specific real property if he has knowledge gained from experience, information, and observation."), disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981). Indeed, in its brief before this Court, the City admits that it "does not contest that [Moore] could have given his opinion as to the fair market values of the property immediately before and after the taking, since he was familiar with this property."
    Because Moore's interrogatory answers were notarized as required for an affidavit and because the City concedes that Moore had the requisite personal knowledge, the answers may be considered for summary judgment purposes. As they include an estimate of thediminution in value that disputes that of the City, summary judgment was inappropriate and we, therefore, reverse and remand for further proceedings to determine the amount of compensation due Moore based on the City's taking.
    Moreover, even if there were not a disputed issue of material fact, we would still be compelled to reverse Judge Sumner's order on the grounds that one superior court judge may not modify or overrule the order of another superior court judge. "[I]t is well established in our jurisprudence that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action." State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (internal quotation marks omitted) (emphasis added).
    A judge may reconsider the order of another judge "'only in the limited situation where the party seeking to alter that prior ruling makes a sufficient showing of a substantial change in circumstances during the interim which presently warrants a different or new disposition of the matter.'" Id. at 549-50, 592 S.E.2d at 194 (quoting State v. Duvall, 304 N.C. 557, 562, 284 S.E.2d 495, 499 (1981)). "A substantial change in circumstances exists if since the entry of the prior order, there has been an intervention of new facts which bear upon the propriety of the previous order." First Fin. Ins. Co. v. Commercial Coverage, Inc., 154 N.C. App. 504, 507, 572 S.E.2d 259, 262 (2002) (internalquotation marks omitted). The party seeking modification of the prior order bears the burden of showing the change in circumstances. Id.
    Judge Crow's order expressly gave Moore until 24 May 2004 to provide the City with a professional appraisal of Moore's property before and after the taking. Judge Sumner's order, on the other hand, granted the City summary judgment on the issue of the diminution in value over a month before this deadline. The City argues that no inconsistency exists between these two orders because there was "no condition" in Judge Crow's order placed on the City's ability to "re-bring" its motion.
    We are not persuaded by the City's construction of Judge Crow's order to allow the City to re-notice its motion for summary judgment for hearing prior to the 24 May 2004 deadline. The basis for the City's original motion for summary judgment was that there was no genuine issue of material fact as to the diminished value of Moore's property because he had allegedly brought forth no evidence on that issue. Judge Crow granted Moore a continuance on the City's summary judgment motion and gave Moore until 24 May 2004 to provide the City with a certified professional appraisal _ an appraisal that would specifically relate to the issue of the diminished value of Moore's property. If Judge Crow did not intend to allow Moore until 24 May 2004 to obtain evidence to oppose the City's motion for summary judgment, then there was no need to grant a continuance or to provide two separate disclosure deadlines.     Judge Crow's order is more reasonably construed as allowing the City to re-notice its motion for summary judgment after 24 May 2004. By entering summary judgment more than a month prior to that date, Judge Sumner effectively modified Judge Crow's order. Cf. Howard v. Vaughn, 155 N.C. App. 200, 204-05, 573 S.E.2d 253, 256-57 (2002) (holding that one superior court judge could not find ineffective an extension of the statute of limitations entered by another superior court judge), disc. review denied, 357 N.C. 62, 579 S.E.2d 389 (2003); Whitley's Elec. Serv., Inc., v. Walston, 105 N.C. App. 609, 610, 414 S.E.2d 47, 47 (1992) (holding that a trial judge erred in granting summary judgment when another judge had previously denied summary judgment).
    The City argues that it should not have been required to wait for Moore to violate both of the deadlines in Judge Crow's order (i.e., to provide certain discovery information by 24 March 2004 and an appraisal report by 24 May 2004) before moving for summary judgment. To the extent Moore violated Judge Crow's order by missing the 24 March 2004 deadline, we fail to see how this fact alone constitutes a substantial change in circumstances that warranted revisiting Judge Crow's order 35 days before it was to expire of its own accord. The City was entitled, as it did, to seek sanctions pursuant to Rule 37, including entry of judgment against Moore. Judge Sumner's order did not, however, address the City's motion for sanctions, and the City did not appeal from or assign error to that omission.     Accordingly, because the record reveals a disputed issue of material fact and because Judge Sumner's order improperly modified Judge Crow's order, we reverse and remand for further proceedings.

    Reversed and remanded.
    Judges MARTIN and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
    This figure is the same whether one uses the higher figures of the estimate ($665,000.00 minus $475,000.00) or the lower figures of the estimate ($570,000.00 minus $380,000.00).

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