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.
Facts
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.
Discussion
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