Horton v. Redevelopment Commission of High Point, 597

• Decision Date: 10 July 1964
• Docket Number: No. 597,597
• Citation: 137 S.E.2d 115,262 N.C. 306
• Court: North Carolina Supreme Court
• Parties: W. W. HORTON, A. G. Whitener, Whitener Realty Company, Inc., Woodworkers Supply Company, Inc., et al., on behalf of themselves and all other taxpayers of the City of High Point, v. REDEVELOPMENT COMMISSION OF HIGH POINT, P. Hunter Dalton, Jr., James H. Millis, Fred W. Alexander, Dale C. Montgomery, Clarence E. Yokeley, and City of High Point, a municipal corporation, Carson C. Stout, Mayor, Arthur G. Corpening, Jr., Roy B. Culler, R. D. Davis, J. H. Froelich, H. G. Ilderton, B. G. Leonard, F. D. Mehan, and Lynwood Smith.

Page 115

137 S.E.2d 115

262 N.C. 306

W. W. HORTON, A. G. Whitener, Whitener Realty Company, Inc.,

Woodworkers Supply Company, Inc., et al., on

behalf of themselves and all other

taxpayers of the City of High Point, v. REDEVELOPMENT COMMISSION OF HIGH POINT, P. Hunter Dalton,

Jr., James H. Millis, Fred W. Alexander, Dale C. Montgomery,

Clarence E. Yokeley, and City of High Point, a municipal

corporation, Carson C. Stout, Mayor, Arthur G. Corpening,

Jr., Roy B. Culler, R. D. Davis, J. H. Froelich, H. G.

Ilderton, B. G. Leonard, F. D. Mehan, and Lynwood Smith.

No. 597

Supreme Court of North Carolina.

July 10, 1964

Harriss H. Jarrell, High Point, for plaintiff appellants.

Knox Walker, Haworth, Riggs, Kuhn & Haworth, High Point, for defendant appellees.

DENNY, Chief Justice.

The record on this appeal contains 475 pages, and the exhibits in addition thereto consist of over 1,600 pages, 48 maps and 31 photographs. The appellants set out 52 assignments of error in the record, purportedly based on 162 exceptions. It is apparent that it would be impractical to undertake to discuss these assignments of error and the exceptions relied upon thereunder seriatim. We shall undertake, however, to discuss those questions raised which we deem necessary to an appropriate disposition of the appeal.

This case was here at the Spring Term 1963, on appeal from an order sustaining a demurrer to the complaint. The opinion reversing the order of the Superior Court sustaining the demurrer is reported in 259 N.C. 605, 131 S.E.2d 464. The pertinent allegations in the plaintiffs' complaint are set out in the opinion on the former appeal.

The appellants do not attack the constitutionality of the Urban Redevelopment Law, Chapter 160, Subchapter VII, Article 37 of the General Statutes of North Carolina. The constitutionality of this article has been upheld by this Court in the case of Redevelopment Commission of Greensboro v. Security National Bank, 252 N.C. 595, 114 S.E. 2d 688.

Appellants' assignments of error Nos. 4, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 28, 29, 30, 31, 32, 36, 38, 39, 40, 41, 43, 44 and 50 will be deemed abandoned since in the brief no reason or argument is stated or authorities cited in support of any of these assignments. Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. at page 810.

Plaintiffs' assignments of error Nos. 2 and 3 are to the refusal to submit to the jury the issues tendered by the plaintiffs and to the discharge of the jury.

In our opinion, the questions sought to be raised by the plaintiffs are questions of fact rather than issues of fact. As heretofore pointed out, while the appellants do not attack the constitutionality of the Urban Redevelopment Law per se, they did contend in the court below and sought to show, as they do here, that the Redevelopment Commission (hereinafter called Commission) and the City of High Point (hereinafter called City) have failed to comply with the Urban Redevelopment Law in certain respects. Everything the Commission and the City have done in connection with the project involved is set out in the record consisting of the plan, its approval by the City as required by G.S. § 160-463, and the modifications of the plan made after its original adoption by the Commission which have been approved by the City as prescribed by G.S. § 160-463(k). All the actions challenged which have been taken by the Commission and the City are set out in writing and for the most part were introduced in evidence by the plaintiffs.

Moreover, there is no allegation in the plaintiffs' complaint charging the Commission or the City with having acted arbitrarily or capriciously in such manner as to amount to an abuse of discretion.

In the case of In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500, this Court said: 'Indeed, so extensive is this discretionary power of housing commissioners that ordinarily the selection of a project site may become an issuable question, determinable by the court, on nothing short of allegations charging arbitrary or capricious conduct amounting to abuse of discretion. * * * ' Such conduct was alleged, and the Court further said:

'Conceding, as we may, that the issuable question thus presented was a question of fact reviewable by the presiding Judge, Madison County Railway Co. v. Gahagan, 161 N.C. 190, 76 S.E. 696; McIntosh, North Carolina Practice and Procedure, pp. 542, 543, nevertheless it was within the discretionary power of the Judge to submit the question to the jury for determination. * * *'

Likewise, in the case of Housing Authority of City of Wilson v. Wooten, 257 N.C. 358, 126 S.E.2d 101, the respondents alleged that the conduct of the petitioner in selecting and seeking a condemnation of their property was arbitrary, capricious, fraudulent and unreasonable. Upon an adverse ruling of the Clerk, the respondents appealed to the Superior Court and demanded a jury trial upon all issues of fact raised by the pleadings. This request was denied and an order affirming the order of the Clerk was entered. Upon appeal to this Court the order entered by the trial judge was affirmed.

These assignments of error are overruled.

Assignment of error No. 52 is as follows: 'The court erred when it signed the judgment, which did not enjoin the defendants from borrowing and spending borrowed money and thereby continuing to execute Project N.C. R-23 until such time as the citizens are allowed to vote on the expending of their money.'

This single assignment of error purports to be based upon exception No. 122, to the refusal of the court below to sign either of the two judgments, one tendered by the plaintiffs and the other by the defendants, and upon exception No. 123 taken to the signing and filing of the judgment. In addition to the foregoing exceptions, exception No. 124, to the discharge of the jury, is listed, as well as exceptions Nos. 125 through 162, these latter exceptions being exceptions to the court's findings of fact and conclusions of law. Moreover, these exceptions are brought forward and copied in the brief exactly as they appear in the record under this one assignment and with no further argument or citation of authority set forth in the brief. This assignment of error is overruled on authority of Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. We have heretofore disposed of the question with respect to plaintiffs' right to a jury trial under assignments of error Nos. 2 and 3.

In the Dobias case, Barnhill, C. J., speaking for the Court, said: 'An assignment of error must present a single question of law for consideration by the court. ' It is then pointed out that under assignment No. 2 in the case, it was proper to group seven exceptions under one assignment of error since '(e)ach and every exception is directed to the question whether under the circumstances of this case the communications between Dr. Dobias and his attorney are privileged and evidence thereof is inadmissible over the objection of the plaintiffs. * * *

'On the other hand, * * * under assignment No. 4, the plaintiffs seek thereby to challenge the sufficiency of the evidence to support seven separate and distinct findings of fact. The evidence which tends to support one finding is not relied on to support the others. Different evidence relates to different findings. * * * Hence this assignment attempts to raise seven different questions and is therefore nothing more than a broadside assignment of error which is insufficient to bring into focus the sufficiency of the testimony to support any particular finding of fact made by the court below.'

Furthermore, beginning with exception No. 124 and continuing through No. 162, neither the single assignment of error, as it appears in the record, nor appellants' brief contain any reference to the printed pages where these exceptions appear in the transcript. This does not comply with Rule 28, supra; Cudworth v. Reserve Life Insurance Co., 243 N.C. 584, 91 S.E.2d 580; Shepard v. La Grange Oil & Fuel Co., 242 N.C. 762, 89 S.E.2d 464.

Where no exceptions have been taken to the admission of evidence or to the findings of fact, or if taken but not properly preserved, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Goldsboro v. Atlantic Coast Line RR., 246 N.C. 101, 97 S.E.2d 486, and cited cases. This assignment of error is overruled.

The appellants contend that the area included in the project under consideration is not a 'blighted area.'

A 'blighted area' is defined in G.S. § 160-456(q) (1963 Cumulative Supplement) as 'an area in which there is a predominance of buildings or improvements (or which is predominantly residential in character), and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsanitary or unsafe conditions, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs the sound growth of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare; provided, no area shall be considered a blighted area nor subject to the power of eminent domain, within the meaning of this article, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this subsection and substantially contribute to the conditions making such area a blighted area * * *.'

The court below found that the Redevelopment Plan for the East Central Urban Renewal Area, adopted by the Commission and the City, contains approximately 510 acres, and that within the project area there are located 1,385 buildings and more than...