Opinion
No. COA04-1718
Filed 15 November 2005 This case not for publication
Appeal by defendant from judgment entered 11 March 2004 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 August 2005.
Helms Mullis Wicker, P.L.L.C., by James G. Middlebrooks, for plaintiff. Griffin, Brunson Perle, L.L.P., by Scott I. Perle, for defendant.
Mecklenburg County Nos. 02 CVS 14113; 02 CVS 16417.
This appeal arises from an eminent domain proceeding involving forty-two acres of undeveloped real property owned by defendant Rozumny Development, LLC. Defendant's property included two contiguous parcels, one previously owned by Thomas and Karen Ferrell, and Wilson D. Johnston ("the Ferrell parcel"), and another previously owned by Henry and Kathy Cox ("the Cox parcel"). The Ferrell parcel was taken by plaintiff Mecklenburg County ("the County") by issuance of a civil summons and the filing of a complaint, declaration of taking and notice of deposit filed withthe superior court on 30 July 2002. The Cox parcel was taken by the County by issuance of a civil summons and the filing of a complaint, declaration of taking and notice of deposit filed with the superior court on 6 September 2002. A jury reached a verdict setting the amount of compensation for each parcel, and trial court entered judgment thereon 11 March 2004. Defendant appeals. For the reasons discussed below, we affirm.
During 1999 and 2000, the City of Charlotte undertook a revision of its land use plan. Defendant, the Ferrells and the Coxes, along with all landowners in the area were notified of the process, which ultimately encouraged the development of a park in the area of these parcels. In 2000, plaintiff expressed an interest in purchasing both the Ferrell and Cox parcels, but could not come to terms. Plaintiff then notified the Coxes and Ferrells that it intended to condemn their parcels for park use. In late 2000 and early 2001, the Coxes and Ferrells entered into sales contracts with defendant for their parcels, including a contingency that the parcels be rezoned. Following the sale, defendant and plaintiff engaged in discussions about locating the park elsewhere and rezoning the parcels, but were unable to reach an agreement.
On 28 January 2002, the City of Charlotte adopted a plan to continue creating a park, and noted that if the park was not created, the area should be zoned for no higher density than R-4. On 25 March 2002, defendant filed a petition for rezoning of the parcels as MF-6, a higher-density, multi-family designation. Defendant closed on its contracts with the Ferrells and Coxes, dropping the rezoning contingency in exchange for a reduced price. The Zoning Commission ultimately recommended denial of the petition, and the City Council upheld this recommendation and began condemnation proceedings.
Defendant first argues that the court erred in denying its motion in limine to exclude the testimony of an expert witness. We disagree.
Defendant contends that the County did not identify Bruce Tomlin, one of its expert witnesses, until after the deadline set by the scheduling order in this case. The County identified Mr. Tomlin as an expert witness two weeks prior to trial. Defendant filed a motion in limine to exclude Mr. Tomlin's testimony, which the court denied. Defendant asserts that the denial was an abuse of the court's discretion and prejudiced its case.
We begin by noting that defendant fails to cite any authority in its brief regarding this argument. In addition, defendant raised no objection at trial to Mr. Tomlin's testimony. Our Courts have long held that "a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial." State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004). The General Assembly attempted to amend Rule 103(a) of the North Carolina Rules of Evidence, for rulings made on or after 1 October 2003, to provide that "a party need not renew an objection or offer of proof to preserve a claim of error for appeal." N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004). This Court has recently held that "to the extent that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C.R. App. P. 10(b)(1), it must fail." State v. Tutt, ___ N.C. App. ___, ___, 615 S.E.2d 688, 692-93 (2005). N.C.R. App. P. 10(b)(1) states: "In 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 grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." However, to prevent "injustice to Defendant . . . after he relied on a procedural statute that was presumed constitutional at the time of trial" we may review the evidence at our discretion. Tutt, ___ N.C. App. at ___, 615 S.E.2d at 693; N.C.R. App. P. 2.
"The trial court has wide discretion in making this advance ruling [on a motion in limine] and will not be reversed absent an abuse of discretion." Heatherly v. Industrial Health Council, 130 N.C. App. 616, 619, 504 S.E.2d 102, 105 (1998). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998) (internal quotation marks and citation omitted). Here, the County's previously designated expert witness became ill before trial and was excused by the trial court. After Mr. Tomlin was identified, the court instructed that the County make Mr. Tomlin available at its own expense for deposition bydefendant, which the County did immediately. The court did not abuse its discretion by allowing Mr. Tomlin's testimony in these circumstances.
Defendant next argues that the court erred in excluding testimony of defendant's witness Richard Ferrell about the basis of the sales price of one of the parcels. We disagree.
Richard Ferrell is the brother of Thomas Ferrell, one of the prior owners of the Ferrell parcel. Richard Ferrell testified at trial about the price of the parcel sold to defendant, but plaintiff contends that Richard Ferrell was not allowed to state that the reduction of the contract price was "related to the zoning and subsequently the price." However, the transcript reveals the following testimony during Richard Ferrell's direct examination:
Q: When the property closed as of May 30, 2002, the price had been reduced — is it correct that the property price had been reduced from $1.3 million to $1 million?
A: Yes, sir.
Q: and did the pendency of the rezoning have anything to do with the reduction of that price?
[Plaintiff's counsel]: Objection.
The Court: Overruled.
The Witness: Yes, sir.
Q: Did the potential for rezoning or for not to be rezoned as of May 30, 2002 have any impact on the reduction of the price?
[Plaintiff's counsel]: Objection; that calls for hearsay, Judge.
The Court: Overruled. The Witness: Yes, sir. We felt like that the circumstances that had developed in recent months reduced the likelihood of that being rezoned. For other reasons, we were trying to close on that property, too.
This exchange reveals that Richard Ferrell was permitted to testify about the relation between the rezoning and price paid for the parcels. In addition, defendant contends that Richard Ferrell was not allowed to testify that the price of the parcel was reduced "as a result of the threatened condemnation and the resistence . . . received from the City of Charlotte Planning Commission to rezone the property. . . ." However, defendant failed to ask Richard Ferrell about the threatened condemnation, and thus, has failed to preserve the testimony in an appropriate proffer. We overrule this assignment of error.
Defendant also argues that the court erred in barring testimony regarding the individual zoning committee vote of Michael Bruno regarding the parcels. We disagree.
Defendant sought to present testimony from zoning committee member Michael Bruno about the basis for his personal vote regarding the rezoning of the parcels. The court excluded such testimony, ruling that the condemnation trial was not the proper forum for attacking the rezoning denial. Defendant acknowledges in its brief that a statutory mechanism exists for making such a challenge, and that it actually filed such a complaint. "The standard of review for this Court assessing evidentiary rulings is abuse of discretion." State v. Boston, 165 N.C. App. 214, 218, 598S.E.2d 163, 166 (2004). We see no abuse of discretion by the trial court here.
Defendant also argues that the court erred in excluding the testimony of defendant's witness Garet Walsh-Johnson about instructions given to staff members of the planning commission. We disagree.
Defendant's proffer indicated that Ms. Walsh-Johnson would testify about the criteria that would be used if the park was not built and defendant applied again for rezoning, criteria based on the original land use plan. However, Ms. Walsh-Johnson stated that the planning commission staff did not follow the instructions, instead working with the new land use plan. Defendant's brief does not explain what effect, if any, the change had on the appraisal of defendant's property. "The standard of review for this Court assessing evidentiary rulings is abuse of discretion." Boston, 165 N.C. App. at 218, 598 S.E.2d at 166. Defendant has failed to show that the court abused its discretion in excluding Ms. Walsh-Johnson's testimony.
Defendant next argues that the court erred in excluding the testimony of proposed witnesses related to the alleged insertion of language into the land use plan. We dismiss this assignment of error for violations of the Rules of Appellate Procedure.
"The North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C.64, 65, 511 S.E.2d 298, 299 (1999)). Defendant simply states what testimony the jury was not permitted to hear, but cites no authority to explain why this might be erroneous, and thus has failed to preserve this error for our review. N.C.R. App. P. 28(b)(6) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.")
In its final argument, defendant contends that the court erred in excluding the testimony of defendant's witness Forrest Earl Todd and two exhibits relating to the sale of surplus dirt from the parcels. We disagree.
Mr. Todd, principal officer of defendant corporation, testified about the value of the property taken by plaintiff. Defendant contends it was error for the court to exclude Mr. Todd's testimony about the separate value of "surplus" dirt on the property and also to exclude the admission of two exhibits relating to offers to purchase the surplus dirt. However, the trial transcript reveals that the court did not exclude Mr. Todd's testimony about the value of surplus dirt. Following the proffer of the two exhibits, the court and defendant's counsel engaged in the following exchange:
[Defendant's counsel]: In light of the sustaining of the objections to these two pieces of evidence, it appears that the Court is not going to allow the value of the dirt to come in.
The Court: I didn't say that. I am sustaining the objection to the contract and the purchasing order.
* * *
The Court: I did not say I will not allow evidence of the value of the dirt.
This colloquy shows that Mr. Todd's testimony was not excluded by the court. This assignment of error is overruled.
The two exhibits which the court did exclude were offers by companies to purchase the surplus dirt. Defendant cites City of Hillsborough v. Hughes, for the proposition that "testimony regarding the enhancing components of the land is that which any informed appraiser or purchaser would necessarily consider in ascertaining the fair market value of property . . . [and] the jury, in determining fair market value, should also be made aware of such enhancing components." 140 N.C. App. 714, 718, 538 S.E.2d 586, 588 (2000). However, "[a] mere offer to buy or sell property is incompetent to prove its market value. The figure named is only the opinion of one who is not bound by his statement and it is [too] unreliable to be accepted as a correct test of value." North Carolina State Highway Comm'n v. Helderman, 285 N.C. 645, 655, 207 S.E.2d 720, 727 (1974). Here, the two exhibits were mere offers, unlike the evidence in Hughes, which was an appraisal. Hughes, 140 N.C. App. at 716, 538 S.E.2d at 587. Thus, while testimony about enhancing components is entirely appropriate, the form and nature of defendant's exhibits rendered them inadmissible.
Affirmed.
Judge TIMMONS-GOODSON concurred prior to 31 October 2005; Judge ELMORE concurs.
Report per Rule 30(e).