An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1505
NORTH CAROLINA COURT OF APPEALS
Filed: 5 July 2006
LEVEL 3 COMMUNICATIONS, LLC,
Petitioner-Appellant,
v
.
Mecklenburg County
No. 00 SP 815
CHARLES G. COUCH, JR., JOE C.
YOUNG, TRUSTEE, U/A/ DATED
DECEMBER 24, 1992 WITH WAYNE
T. UPCHURCH AND ELIZABETH C.
UPCHURCH, KNOWN AS THE BARRY
UPCHURCH TRUST, JOE C. YOUNG,
TRUSTEE, U/A/ DATED DECEMBER
24, 1992 WITH WAYNE T. UPCHURCH
AND ELIZABETH C. UPCHURCH,
KNOWN AS THE GRAVES UPCHURCH
TRUST,
Respondent-Appellees.
Appeal by plaintiff from judgment of Judge Timothy L. Patti
entered 30 March 2005; Judge Timothy L. Patti's 16 March 2005
denial from the bench of Petitioner's Motions for Directed Verdict
and for Judgment Notwithstanding the Verdict Pursuant to Rule 50;
and an order entered 26 May 2005 by Judge Timothy L. Patti in
Mecklenburg County Superior Court. Heard in the Court of Appeals
18 May 2006.
Womble Carlyle Sandridge & Rice, PLLC, by Mark P. Henriques,
for petitioner appellant.
James, McElroy & Diehl, P.A., by Bruce M. Simpson, for
respondent appellee.
MCCULLOUGH, Judge.
Plaintiff appeals from judgment entered after a jury verdict
awarding defendants just compensation in the amount of $150,000 forcondemnation of an easement and an order denying plaintiff's motion
for new trial. We affirm.
FACTS
On 21 March 2000, plaintiff, Level 3 Communications (Level
3") filed a petition in Mecklenburg County Superior Court to
condemn a 10-foot easement through property owned by Charles G.
Couch, Jr., the Barry Upchurch Trust, and the Graves Upchurch Trust
(defendants). The Clerk of Superior Court entered judgment for
defendants determining that Level 3 had been granted interim
construction authority for long line telecommunications in the
State of North Carolina, Certificate of Public Convenience and
Necessity to provide intrastate, interexchange, facilities-based
long distance telecommunications services in North Carolina and
local telecommunications services in North Carolina, and that in
order to carry out such public business for the public use and
benefit required certain rights of defendants' property. The
judgment further stated that defendants were entitled to just
compensation in the amount of $1,300.00. On 16 October 2003
defendants gave notice of appeal from the entry of this judgment
and made a demand for a jury trial in Mecklenburg County Superior
Court.
The following pertinent background information was adduced at
trial: The property which is the subject of the dispute consists of
two parcels owned by defendants. In 1961 George P. Wadsworth, as
receiver for a third-party company, deeded a parcel of land to
Charles G. Couch and Beach Hall for the price of $43,200.00. In1969, a second parcel was deeded to Charles G. Couch and Beach Hall
for the price of $49,000.00. The two deeds together make up the
319 to 320 acres of property which contain the easement subject to
dispute. On 30 July 1982, Beach Hall and his wife Sue G. Hall
deeded their one-half interest in the property acquired in the two
previous deeds to Labouisse & Couch, Inc., a company owned by
Charles G. Couch for the price of $140,000.00. At the time of
Charles G. Couch's death in 1986, the property was split into a
one-half interest owned by Charles G. Couch and one-half interest
owned by Labouisse & Couch, Inc. Upon his death, Charles G. Couch
left everything he owned to his son and daughter, Charles G. Couch,
Jr. and Elizabeth Upchurch.
In October 1987, a deed was executed transferring a one-half
interest in the property from Labouisse & Couch, Inc. to Charles G.
Couch, Jr. and Elizabeth Upchurch. At the time of transfer, the
property was valued for tax purposes at $725,000.00. In 1992,
Elizabeth Upchurch and her husband transferred a one-half interest
into the Graves-Upchurch Trust and Barry Upchurch Trust making Joe
C. Young (Mr. Young) the trustee of both trusts.
Sometime around 1941, the tracts of land owned by defendants
became subject to a 30-foot easement in favor of Plantation
Pipeline Company (Plantation Pipeline). The easement gave
Plantation Pipeline a right-of-way and easement for the purposes of
installing pipes and transporting petroleum based products. In June
1974, an agreement was executed granting an additional 20-foot
easement, creating a 50-foot easement, in favor of PlantationPipeline for the price of $25,000.00. At some point after the
granting of the easements, Plantation Pipeline installed certain
pipes underground within their 50-foot easement.
Level 3 attempted to negotiate with defendants to acquire an
easement over defendant's property for the purpose of placing fiber
optic telecommunication cables through the 10-inch pipe located
within the Pipeline Plantation easement as a licensed utility
company. The parties were unable to reach an agreement and
therefore Level 3 instituted action for condemnation proceedings.
At the jury proceeding to determine just compensation, Mr.
Young, as trustee for the trusts holding an interest in the
property, testified to the background and history regarding the two
tracts of land, the granting of the easements, and the fair market
value of the easement and the land without objection. A summary of
the history of ownership transfers and value of property was
introduced at trial as Exhibit 8A over the objection of Level 3.
Mr. Young further testified that in his opinion he believed
the easement, the rights that Level 3 was obtaining, had a value of
$190,000.00. Mr. Young gave further testimony in regard to the
value of the land now, as compared to the value of the land at the
time that the original easement was acquired. A written summary of
this testimony was introduced at trial as Exhibit 8B over the
objections of Level 3. Mr. Young also produced evidence showing the
value of the land as $9,000,000.00 after the taking by Level 3 and
opined that the difference between the fair market value before the
taking and after the taking was $190,000.00. At the close of defendant's evidence and again at the close of
all evidence, Level 3 made a motion for directed verdict which was
denied by the trial judge. At the charge conference, Level 3
requested a jury instruction regarding an easement within an
easement. The language of the proposed jury instruction was as
follows:
Petitioner Level 3 contends that the
Level 3 easement is located entirely within an
existing easement owned by Plantation Pipeline
Company. You are instructed that if you find
that the Level 3 easement is within land
already burdened by an existing easement, you
are to award damages only for the additional
burden caused by the Level 3 easement. In
other words, you are to consider the
Respondents' land not in its pristine and
[u]nencumbered state, but encumbered by any
easements exist[ing] prior to the Level 3
easement. You are to award the difference in
the fair market value of Respondents' land
subject to the existing easement, immediately
before and immediately after subjecting it to
the additional easement imposed by Level 3.
The judge denied the request to have the jury instructed based on
the proposed language and instead instructed based on the Pattern
Jury Instructions.
The jury verdict form indicated two preliminary questions for
the jury to answer:
1. What was the fair market value of the
portion of Respondents' property taken by
Level 3 Communications, LLC at the time
of the taking?
2. What was the difference between the fair
market value of Respondents' entire
property immediately before the taking
and the fair market value of the
remainder immediately after the taking?
The jury answered both preliminary questions with the amount of
$150,000.00 and therefore determined the amount of just
compensation for the taking to be $150,000.00. Judgment was entered
on 30 March 2005 in accordance with the jury verdict and on 31
March 2005, Level 3 made a motion for a new trial which was denied
by the trial judge.
Plaintiff now appeals.
ANALYSIS
I
Level 3 contends on appeal that the trial court erred in
denying their request for a jury instruction containing
instructional language as to how the jury should treat the issue of
an easement within an easement. We disagree.
On appeal, this Court considers a jury charge contextually and
in its entirety. Jones v. Satterfield Development Co., 16 N.C. App.
80, 86, 191 S.E.2d 435, 439, cert. denied, 282 N.C. 304, 192 S.E.2d
194 (1972). 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. at 86-87, 191 S.E.2d at 440. The party asserting error bears
the burden of showing that the jury was misled or that the verdict
was affected by an omitted instruction. Robinson v. Seaboard
Railroad, 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987), disc.
review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). Under such a
standard of review, it is not enough for the appealing party to
show that error occurred in the jury instructions; rather, it mustbe demonstrated that such error was likely, in light of the entire
charge, to mislead the jury. Id.
The trial judge instructed the jury that there were two
different methods for determining the amount of just compensation
that defendants were entitled to receive and that the jury should
award the greater of those two amounts. The trial judge instructed
the jury that the two valuations to compare were (1) the fair
market value of the easement across defendants' property taken by
Level 3 at the time of the taking, and (2) the difference between
the fair market value of the entire property immediately before the
taking, and the fair market value of the remainder immediately
after the taking. In instructing the jury on both of these
valuations, the judge clearly instructed in both instances that in
arriving at the fair market value of the property, the jury was to
consider not only the use of the property, at the time of the
taking[,] but also, all the uses to which it was then reasonably
adaptable, including what you find to be the highest and best
use[.] Taken in context with the evidence adduced at trial, the
instruction given by the trial court instructed the jury as to the
substance of the special instruction requested by Level 3, however
in different language than that requested. See Calhoun v. Highway
Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935) (Our Supreme
Court has held that, when a party requests a special instruction
that is correct in itself and supported by evidence, the trial
court, while not obliged to adopt the precise language of the[request], is nevertheless required to give the instruction, in
substance at least[.]).
The evidence adduced at trial clearly showed that the property
in dispute was subject to a previous easement held by Plantation
Pipeline. In denying the request for a jury instruction on an
easement within an easement, the judge merely stated that, in his
discretion, he was opting to instruct using the pattern jury
instruction, instead of that proposed by Level 3. The trial judge
made no admonishment against Level 3 presenting their argument
before the jury that defendants were entitled compensation
reflecting only the additional burden caused by their taking. The
jury instruction clearly directed the jury to consider the use of
the property at the time of the taking, the fact that the property
was already encumbered, and therefore, it cannot be said that given
the jury instructions, taken as a whole, the jury was misled as to
the law. Therefore, this assignment of error is overruled.
II
Next, Level 3 argues on appeal that the trial court erred in
admitting certain evidence based on the contention that this
evidence was inadmissible. We find no merit to this contention.
Level 3 cites numerous instances of testimony and exhibits
which it contends were inadmissible and error, therefore warranting
a new trial. However, [i]n 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 groundsfor the ruling the party desired the court to make[.] N.C.R. App.
P. 10(b)(1) (2006).
Further, even assuming arguendo that the error was properly
preserved for appeal, where a litigant contends that the trial
court erroneously admitted inadmissible evidence, they must come
forth, at the appellate level, and make a showing as to the
prejudicial effect the admission of such evidence had on the
outcome of the trial. Suarez v. Wotring, 155 N.C. App. 20, 30, 573
S.E.2d 746, 752 (2002) (The burden is on the appellant to not only
show error, but also to show that he was prejudiced and a different
result would have likely ensued had the error not occurred.),
disc. review denied, 357 N.C. 66, 579 S.E.2d 107 (2003). The
erroneous admission of testimony will not be held prejudicial when
its import is abundantly established by other competent testimony,
or the testimony is merely cumulative or corroborative. Warren v.
City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864,
disc. review denied, 314 N.C. 336, 33 S.E.2d 496 (1985).
A.
Level 3 contends that it was error for the trial court to
admit Exhibits 8A and 8B where they contained inadmissible
testimony. However, it is clear from a review of the transcript and
the exhibits that 8A and 8B were mere compilations of testimony
given at trial by Mr. Young.
Exhibit 8A presented a summary of history of ownership,
transfers, and the value of property, all of which Mr. Young
testified to before the exhibit was tendered to the court, withoutobjection by Level 3. Exhibit 8B is a written summary of the method
used by Mr. Young to compute the value of the 10-foot easement
based on relative property values. Again, the values and
computations contained in Exhibit 8B were mere transcriptions of
the testimony given by Mr. Young without objection by Level 3. Id.
Even assuming arguendo that the evidence was inadmissible and
that the error was properly preserved for appellate review, it
cannot be said that the introduction of the exhibits as evidence
had any effect on the outcome of the trial where Mr. Young had
previously testified, without objection, to the contents contained
in both exhibits.
B.
Level 3 further contends that the trial court erred in
allowing Mr. Young to testify as to the value of the easement to
Level 3.
The law is clear that where there is a partial taking, the
measure of compensation is the greater of either (i) 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 (ii) the fair market value of the
property taken. N.C. Gen. Stat. § 40A-64(b) (2005). Moreover, an
owner is competent to testify as to the value of his own property
as he is deemed to have sufficient knowledge of the property and
its possibilities 'to have a reasonably good idea of what it is
worth.' Responsible Citizens v. City of Asheville, 308 N.C. 255,270, 302 S.E.2d 204, 213-14 (1983) (citation omitted). The
following exchange took place during the testimony of Mr. Young:
Q: Do you have an opinion as to fair market
value of the property taken by the petition,
which is the subject of this case?
A: Yes
. . . .
A: I think that the value, the fair value of
this -- of the rights that Level 3
Communications got, is getting, under these
proceedings is $190,000.
After a cursory review of the transcript it is apparent that Mr.
Young was not testifying to the value of the property acquired by
Level 3, rather, on the contrary, Mr. Young was merely meeting the
burden of defendants in this case by making a showing as to the
fair market value of the property taken.
We find no error in the admission of Mr. Young's testimony, as
an owner of the land, to the fair market value of the property
taken.
C.
Level 3 next contends that it was error for the trial court to
allow admission of Mr. Young's testimony as to the price paid by
Plantation Pipeline for the easement in 1974. However, Level 3
failed to make any objection to the admission of the testimony at
trial and therefore has failed to properly preserve this error for
appellate review. See N.C.R. App. P. 10(b)(1).
Therefore, this assignment of error is overruled.
III
Level 3 further contends that the trial court erred in
refusing to grant its motion for directed verdict at the close of
the evidence where defendants failed to show the fair market value
of the land at the time of the taking. We disagree.
A trial court must view all of the evidence supporting the
nonmovant's claim as true, and must consider the evidence in the
light most favorable to the nonmovant, giving the nonmovant the
benefit of every reasonable inference that may be drawn therefrom.
Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329
S.E.2d 333, 337-38 (1985). On appeal, our Court applies a de novo
standard of review. Monin v. Peerless Ins. Co., 159 N.C. App. 334,
340, 583 S.E.2d 393, 397 (2003). It is clear from the testimony of
Mr. Young that he testified to his opinion of the fair market value
of the property at the time of the taking, $190,000. Mr. Young
further opined that the fair market value of the entire tract of
the property before the taking was $9,900,000.00 and that the
difference in the value of the entire tract of property before and
after the taking was $190,000.00. Where our review of the record
clearly shows direct evidence of the fair market value, we can
determine that the motion for a directed verdict was properly
denied and, therefore, this assignment of error is overruled.
IV.
Finally, Level 3 contends on appeal that the trial court erred
in denying its motion for a new trial where the verdict was
excessive and contrary to law. We disagree.
Rule 59 (a) provides in pertinent part:
A new trial may be granted to all or any of
the parties and on all or part of the issues
for any of the following causes or grounds:
. . . .
(5) Manifest disregard by the jury of the
instructions of the court;
(6) Excessive or inadequate damages appearing
to have been given under the influence of
passion or prejudice;
. . . .
(8) Error in law occurring at the trial and
objected to by the party making the
motion[.]
N.C. Gen. Stat. § 1A-1, Rule 59(a) (2005). A motion under section
(a) of Rule 59 is addressed to the sound discretion of the trial
judge.
Hamlin v. Austin, 49 N.C. App. 196, 270 S.E.2d 558 (1980).
A ruling in the discretion of the trial judge raises no question of
law.
See Bryant, 313 N.C. 362, 329 S.E.2d 333. The standard for
review of a trial court's discretionary ruling either granting or
denying a motion to set aside a verdict and order a new trial is
virtually prohibitive of appellate intervention.
Pearce v.
Fletcher, 74 N.C. App. 543, 544, 328 S.E.2d 889, 890 (1985). [A]n
appellate court should not disturb a discretionary Rule 59 order
unless it is reasonably convinced by the cold record that the trial
judge's ruling probably amounted to a substantial miscarriage of
justice.
Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599,
605 (1982).
Our review of the record does not give any indicia of an abuse
of discretion on the part of the trial judge. The jury was
presented with evidence from both sides as to opinions regarding
the fair market value of the property. Further, the trial judge
informed the jury in its charge of the law in regard to the amount
of compensation which defendants were entitled. Level 3's
contention on appeal amounts to nothing more than yet another
attempt to assert its arguments made at trial as to compensation
which, as evidenced by the verdict, the jury rejected.
Therefore, this assignment of error is overruled.
Accordingly, for the reasons stated above, we find no error in
the trial court's decisions and the jury's determination as to just
compensation for the taking of an easement by Level 3 over the
property of defendant, and we therefore
Affirm.
Judges HUDSON AND TYSON concur.
Report per Rule 30(e).
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