Appeal by petitioners from an order entered 3 January 2006 by
Judge F. Fetzer Mills, Union County Superior Court. Heard in the
Court of Appeals 24 January 2007.
The Brough Law Firm, by Robert E. Hornick, Jr., for
petitioner-appellants.
Parker, Poe, Adams & Bernstein, L.L.P., by Anthony Fox and
Benjamin R. Sullivan, for respondent-appellee.
BRYANT, Judge.
William J. Nolan, III and Louise C. Hemphill-Nolan
(petitioners) appeal from an order entered 3 January 2006 granting
an involuntary dismissal with prejudice against the Town of
Weddington (respondent). Petitioners specifically challenge
respondent's annexation ordinance by arguing that the police
services respondent provides to its residents are not “meaningful.” The annexation ordinance petitioners challenge was adopted by
respondent on 11 July 2005, and seeks to annex into the Town of
Weddington, an unincorporated portion of Union County (Annexation
Area). Petitioners own four vacant lots within the Annexation Area
and, pursuant to N.C. Gen. Stat. § 160A-50, they petitioned the
Union County Superior Court to review and invalidate the annexation
ordinance.
On 15 December 2005, the Union County Superior Court held a
non-jury trial, presided over by the Honorable Judge F. Fetzer
Mills, to consider petitioners' claim. Chief Deputy Ben Bailey of
the Union County Sheriff's Department was identified as a potential
witness for petitioners the week before trial and appeared under
subpoena. Respondent filed a motion in limine to exclude Chief
Deputy Bailey's testimony. After questioning Chief Deputy Bailey,
respondent moved to dismiss this action under N.C. R. Civ. P., Rule
41 (b). Judge Mills granted respondent's motion in limine and
motion to dismiss. Petitioners appeal.
____________________________
On appeal petitioners argue the trial court erred by: (I)
granting respondent's motion
in limine which excluded Chief Deputy
Ben Bailey's testimony concerning an agreement to provide enhanced
police services to Town residents and (II) granting respondent's
motion to dismiss pursuant to N.C. R. Civ. P., Rule 41(b). For the
following reasons, we affirm the trial court's ruling.
I
[1] Petitioners first argue the trial court erred by granting
respondent's motion
in limine which excluded Chief Deputy Bailey's
testimony concerning the agreement between the respondent and Union
County Sheriff's Department to provide enhanced police services to
Town residents.
“A motion
in limine seeks pretrial determination of the
admissibility of evidence proposed to be introduced at trial; its
determination will not be reversed absent a showing of an abuse of
the trial court's discretion.”
Warren v. GMC, 142 N.C. App. 316,
319, 542 S.E.2d 317, 319 (2001) (citing
Nunnery v. Baucom, 135 N.C.
App. 556, 521 S.E.2d 479 (1999)).
The “party asserting error must
show from the record not only that the trial court committed error,
but that the aggrieved party was prejudiced as a result.”
Lawing
v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986); N.C.
Gen. Stat. § 1A-1, Rule 61 (2005) (“No error in either the
admission or exclusion of evidence . . . is ground for granting a
new trial . . . unless refusal to take such action amounts to the
denial of a substantial right.”).
In his testimony, Chief Deputy Bailey explained that at any
one time only eight sheriff's deputies patrol Union County.
Respondent's contract requires that one or more additional deputies
within Weddington respond to calls for at least twelve hours each
day. Chief Deputy Bailey stated the specific hours these deputies
are stationed in Weddington are generally tailored to meet
Weddington's expressed needs and preferences. Chief Deputy Bailey
also stated that Weddington's contract payments fund three deputypositions within the Sheriff's Department that otherwise “would not
exist.” Chief Deputy Bailey stated that Weddington's contract with
the Sheriff's Department provides the Town with “enhanced
coverage[.]”
Petitioners complain that Chief Deputy Bailey's testimony was
essential to explain the details of how Weddington's police
services are provided. While Chief Deputy Bailey's testimony did
provide the terms and conditions of the police services contract
his testimony also highlighted the fact that the contract provided
enhanced police protection as an added benefit to Weddington
residents. Petitioners have not shown the exclusion of Chief
Deputy Bailey's testimony prejudiced the outcome of this case. The
trial court did not abuse its discretion in granting respondent's
motion
in limine. This assignment of error is overruled.
II
[2] Petitioner argues the trial court erred by granting
respondent's motion to dismiss pursuant to N.C. R. Civ. P., Rule
41(b) based on respondent's failure to abide by statutory
annexation requirements. We disagree.
Where the record of a town's annexation proceedings
demonstrates
prima facie compliance with the annexation statutes,
a party challenging the annexation's validity has the burden of
proving that the annexation is invalid.
Food Town Stores, Inc. v.
Salisbury, 300 N.C. 21, 25, 265 S.E.2d 123, 126 (1980). “The trial
judge sits as trier of the facts and may weigh the evidence [and]
find the facts against the plaintiff ... even though the plaintiffhas made out a
prima facie case which would have precluded a
directed verdict for the defendant in a jury case.”
Lumbee River
Elec. Membership Corp. v. Fayetteville, 309 N.C. 726, 741, 309
S.E.2d 209, 218 (1983). The trial court does not construe the
evidence in a light most favorable to the plaintiff but instead
weighs the evidence just as it would at the end of a non-jury
trial.
Dealers Specialties, Inc. v. Neighborhood Housing Servs.,
Inc., 305 N.C. 633, 638, 291 S.E.2d 137, 140 (1982). “The trial
court's judgment therefore must be granted the same deference as a
jury verdict.”
Lumbee River, 309 N.C. at 741, 309 S.E.2d at 218.
Here, the Superior Court's factual findings are not challenged on
appeal and are therefore conclusive.
See N.C. R. App. P. 10(a)
(“Except as otherwise provided herein, the scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record”);
see also Parkwood Ass'n v. City of Durham,
124 N.C. App. 603, 609, 478 S.E.2d 204, 208 (1996) (“Since
petitioners did not except or assign error to these findings, they
are presumed to be correct and supported by the evidence.”).
Petitioners raise only one challenge to Weddington's
annexation: that Weddington will provide insufficient municipal
services to the Annexation Area. A town is required to extend its
municipal services on a non-discriminatory basis, meaning it must
provide an annexed area with substantially the same services it
provides to existing town residents. N.C. Gen. Stat. § 160A-47(3)
(2005). This statute requires a town to adopt a report on its
annexation that includes: A statement setting forth the plans of the
municipality for extending to the area to be
annexed each major municipal service performed
within the municipality at the time of
annexation. Specifically, such plans shall:
a. Provide for extending police protection,
fire protection, solid waste collection and
street maintenance services to the area to be
annexed . . . on substantially the same basis
and in the same manner as such services are
provided within the rest of the
municipality[.]
N.C. Gen. Stat. § 160A-47(3)(a) (2005). The sufficiency of
services provided to an annexed area, therefore, is measured
against what services are provided to existing town residents. A
town must provide the annexed area with “each major municipal
service performed within the municipality,” and it must provide
those services “on substantially the same basis” that they are
provided elsewhere within the town.
See Id. If a town extends the
services it currently provides, and if it extends them in a
nondiscriminatory manner, it satisfies the statutory requirements.
See Greene v. Valdese, 306 N.C. 79, 87, 291 S.E.2d 630, 635 (1982)
(“Providing a
nondiscriminating level of services within the
statutory time is all that is required.” )(emphasis in original)
(citation omitted);
Chapel Hill Country Club, Inc. v. Chapel Hill,
97 N.C. App. 171, 184, 388 S.E.2d 168, 176 (1990) (“a
municipality's plan is required to show only that a
nondiscriminatory level of services will be provided”).
According to the annexation report, Weddington will extend its
municipal services on a non-discriminatory basis, thus satisfying
the statutory requirements. Petitioners contend that Weddington's
services will not provide the Annexation Area with a “meaningful”benefit. Our Supreme Court recently stated that if an annexing
town's services are too minimal to provide such a benefit, its
annexation is invalid, even if it will extend those minimal
services on a non-discriminatory basis.
Nolan v. Village of
Marvin, 360 N.C. 256, 262, 624 S.E.2d 305, 308 (2006).
In
Village of Marvin, these same petitioners argued that an
annexation plan adopted by the Village of Marvin was invalid
because Marvin would provide insufficient administrative service to
the annexed area.
Village of Marvin, 360 N.C. at 258, 624 at 307.
Marvin provided no other services beyond the services of an
administrative staff consisting of three part-time employees (a
town clerk, tax collector, and administrator) each of whom worked
only twelve (12) hours per week.
Id. The Supreme Court deemed
Marvin's annexation invalid, even though it satisfied the
non-discriminatory application standard, because Marvin's
administrative services were too minimal to provide the annexed
area with any “meaningful” benefit.
Id. at 260, 624 at 308
(annexation policy “is grounded in a legislative expectation that
the annexing municipality possesses meaningful . . . services[.]”).
The “meaningful” benefit standard is not an express
requirement of the annexation statutes, but instead is implied in
the underlying annexation policies.
See N.C.G.S. § 160A-47(3)
(2005). Prefacing the substantive provisions of the annexation
statute is a “Declaration of Policy.”
See N.C. Gen. Stat. §
160A-45 (2005). The “Declaration of Policy” is read
in pari
materia with the more detailed annexation statutes to guide theirinterpretation.
Moody v. Town of Carrboro, 301 N.C. 318, 325-27,
271 S.E.2d 265, 270-71 (1980)
and Village of Marvin, 360 N.C. at
257, 624 S.E.2d at 308.
(See footnote 1)
The “Declaration of Policy” explains that
“municipalities are created to provide the governmental services
essential for sound urban development and for the protection of
health, safety and welfare [and] municipal boundaries should be
extended . . . to provide the high quality of governmental services
needed therein for the public health, safety and welfare[.]”
Village of Marvin, 360 N.C. at 261, 624 S.E.2d at 308 (emphasis
added) (quoting “Declaration of Policy” in N.C.G.S. §§ 160A-33(2)
and (3)).
Petitioners contend Weddington's services fail
Village of
Marvin's “meaningful” benefit test. Our Supreme Court held that
merely providing limited administrative services without providing
significant benefits to the annexed residents was inadequate to
meet the statutory requirements.
Village of Marvin, 360 N.C. at
262, 624 S.E.2d at 308. The “Declaration of Policy,” instructs
“[t]hat municipal boundaries should be extended in accordance with
legislative standards applicable throughout the State[,]” and thatannexation should be governed by “uniform legislative standards[.]”
N.C. Gen. Stat. §§ 160A-45(3) and (5) (2005).
The annexation statutes indicate police protection is a
service that furthers annexation policy; in fact, the statute
expressly contemplates that one type of service an annexing town
may extend to an annexed area is “police protection[.]”
N.C. Gen.
Stat. § 160A-47(3)(a) (2005). Our Supreme Court specifically noted
that the Village of Marvin did not have a contract for police
service.
Village of Marvin, 360 N.C. at 258, 624 S.E.2d at 307
(noting that when annexation was adopted “[T]he Village of Marvin
lacked a contract for police protection.”). The Supreme Court
found the Village of Marvin's annexation invalid because the
limited administrative services Marvin provided (such as those of
a part-time administrator, clerk, and tax collector) would not
confer a significant benefit on the residents; in other words such
limited administrative services would not promote an annexed area's
public health, safety, and welfare and did not provide the Village
of Marvin with a “meaningful” benefit.
By contrast, in the instant case, the Weddington annexation
provided police protection, a service that promotes the health,
safety, and welfare of residents within the annexed area. Here,
the sheriff tailors the police protection provided by three
additional deputies to meet Weddington's expressed needs and
preferences. Such protection provides a meaningful benefit to the
annexed residents. Further, petitioners are bound by the trial
court's factual finding that “[Petitioners] . . . have not shownthat the Annexation Area currently receives police services that
are comparable to those that the Town will provide the Annexation
Area after the annexation becomes effective.”
See Parkwood Ass'n,
124 N.C. App. at 609, 478 S.E.2d at 208 (“Since petitioners did not
except or assign error to th[is] finding[], [it is] presumed to be
correct and supported by the evidence.”). Because the Weddington
annexation meets the requirements of the annexation statutes (
see
e.g., N.C.G.S. § 160A-47(3)(a)(2005)) and furthers the public
policies underlying the annexation statutes (N.C.G.S. § 160A-45
(2005)), it is therefore valid.
This assignment of error is
overruled.
Affirmed.
Judges MCGEE and ELMORE concur.
Footnote: 1