N.C. Dep't of Transp. v. Mission Battleground Park

• Decision Date: 06 September 2016
• Docket Number: No. COA16–125,COA16–125
• Citation: 249 N.C.App. 333,791 S.E.2d 478
• Court: North Carolina Court of Appeals
• Parties: NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff, v. MISSION BATTLEGROUND PARK, DST ; Mission Battleground Park Leaseco, LLC, Lessee; Lasalle Bank National Association, as Trustee for the Register Holders of CD 2006–CD3 Commercial Mortgage Pass–Through Certificates; Lat Battleground Park, LLC, Defendants.

249 N.C.App. 333

791 S.E.2d 478

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff,

v.MISSION BATTLEGROUND PARK, DST ; Mission Battleground Park Leaseco, LLC, Lessee; Lasalle Bank National Association, as Trustee for the Register Holders of CD 2006–CD3 Commercial Mortgage Pass–Through Certificates; Lat Battleground Park, LLC, Defendants.

No. COA16–125

Court of Appeals of North Carolina.

Filed: September 6, 2016

Attorney General Roy Cooper, by Special Deputy Attorney General Hilda Burnett–Baker and Assistant Attorney General Phyllis A. Turner, for the North Carolina Department of Transportation.

Smith Moore Leatherwood LLP, by Patrick M. Kane, Bruce P. Ashley, Greensboro, and Matthew Nis Leerberg, Raleigh, for defendant-appellants.

TYSON, Judge.

Defendants appeal from judgment entered upon a jury's verdict returned on just compensation. We find no error.

I. Background

Landmark at Battleground Park ("Landmark") is a 240–unit apartment complex located on Drawbridge Parkway in Greensboro, North Carolina. The named Defendants are the current owner, former owner, mortgage holder, and lessee of Landmark.

On 11 March 2013, the North Carolina Department of Transportation ("NCDOT") condemned a 2.193 acres portion of Landmark's property for construction of a portion of "the Greensboro Urban Loop." The elevated highway was constructed near and on an angle relative to the front entrance of the property.

Landmark is owned by Defendant LAT Battleground Park, LLC ("LAT Battleground"). LAT Battleground purchased the property from Defendant, Mission Battleground Park DST, for $14,780,000.00, with knowledge of and during the pendency of the condemnation.

Prior to the highway construction, the apartment complex was described as "tucked away" from the road and situated "in the woods" on 32.76 acres. A heavily wooded tree buffer existed adjacent to the road. Landmark's secluded location was asserted to provide a market advantage for prospective tenants. The outdoor amenities, including pools, volleyball and tennis courts, and wooded areas are "main selling points" for potential residents. Drawbridge Parkway was a low traffic volume, two-lane roadway with a posted thirty mile-per-hour speed limit prior to the construction. Drawbridge Parkway was relocated on two lanes closer to the complex on property taken as part of this condemnation.

The highway construction eliminated the wooded buffer in front of the property, part of which was located on the Drawbridge Parkway's right-of-way. The elevated six-lane highway runs at an angle in front of the property, thirty-five to forty feet above the ground. Evidence presented showed a portion of the highway was constructed over LAT Battleground's property.

The highway plans include construction of a 15–foot noise wall, rising from the highway to fifty to fifty-five feet in front of Landmark. The construction plans also include another thirty-five foot noise wall on Drawbridge Parkway, directly across the street from Landmark.

The parties did not agree upon the amount of damages and compensation owed to Landmark for the property taken. NCDOT deposited $276,000.00 with the Guilford County Clerk of Superior Court as its estimate of just compensation. Landmark claimed NCDOT's estimate was grossly inadequate, and asserted just compensation for the appropriation and damages ranged between $3,100,000.00 and $3,700,000.00.

NCDOT filed a complaint in Guilford County Superior Court to obtain a determination of just compensation due. The cause was tried before a jury on 29 June 2015. Defendants’ evidence tended to show damages of $3,169,175.00 incurred from the construction of the highway project across a portion of the property.

NCDOT presented two expert witnesses. One expert witness testified Defendants’ damages were $276,000.00, the amount of the deposit with the clerk of court. NCDOT's other expert witness testified Defendants’ damages were $1,271,850.00. The jury returned a verdict, and determined $350,000.00 was just compensation for damages arising from the taking of the property. LAT Battleground appeals.

II. Issues

LAT Battleground argues the trial court erred by: (1) excluding James Collins’ expert opinion testimony on fair market value; (2) excluding a sound and noise demonstration by LAT Battleground's acoustical expert, Dr. Noral Stewart; (3) declining to hold a hearing on the issue of juror misconduct and denying LAT Battleground's motion for a new trial based upon juror misconduct; and (4) giving a special jury instruction requested by NCDOT.

III. Evidentiary Rulings

A. Standard of Review

The trial courts are afforded "wide latitude of discretion when making a determination about the admissibility of expert testimony." State v. Bullard , 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). The standard of review for a trial court's evidentiary ruling is abuse of discretion. Marley v. Graper , 135 N.C.App. 423, 425, 521 S.E.2d 129, 132 (1999). "To demonstrate an abuse of discretion, the appellant must show that the trial court's ruling was manifestly unsupported by reason, or could not be the product of a reasoned decision." Wachovia Bank v. Clean River Corp. , 178 N.C.App. 528, 531, 631 S.E.2d 879, 882 (2006) (citation and emphasis omitted).

B. Opinion Testimony and Report of James Collins

1. Preservation of Error

NCDOT argues LAT Battleground did not preserve the trial court's ruling on the admissibility of Mr. Collins’ testimony and evidence for appellate review, because NCDOT did not call Mr. Collins as a witness at trial. We disagree.

Pursuant to Rule 103 of the Rules of Civil Procedure:

(a) Effect of erroneous ruling.—Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

....

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, 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) (2015).

LAT Battleground made an offer of proof of the substance of Mr. Collins’ testimony, which appears in the record. This issue was preserved under the plain language of Rule 103, and is properly before us.

See GE Betz, Inc. v. Conrad , 231 N.C.App. 214, 232, 752 S.E.2d 634, 648 (2013) ("A motion in limine is typically insufficient to preserve for appeal the admissibility of evidence; however, a party may preserve the exclusion of evidence for appellate review by making a specific offer of proof."). This argument is overruled.

2. Requirement of Voir Dire

LAT Battleground argues the trial court erred by ruling upon NCDOT's motion to exclude Mr. Collins’ opinion and evidence without conducting a voir dire. It asserts the absence of a voir dire deprived the court of the opportunity to understand the nature and scope of Mr. Colllins’ testimony before deciding to exclude it.

LAT Battleground cites no binding precedent which requires the trial court to conduct a formal voir dire hearing prior to ruling on a motion in limine . LAT Battleground cites Floyd v. Allen , 2008 N.C. App. LEXIS 2000, 2008 WL 4779737, *7 (N.C. Ct. App. Nov. 4, 2008), an unpublished opinion of our Court, in which the Court held it was error to exclude expert testimony when the trial court ruled on the motion within fifteen minutes, and without considering the expert's deposition or other evidence of his anticipated testimony.

Here, the record shows the trial court heard arguments of counsel and considered Mr. Collins’ 124–page report, which included his credentials, research, methodology, and opinion. The trial court took the matter under advisement during the overnight recess, far different than the facts present in Floyd . The information presented to and considered by the trial court was sufficient to allow the court to properly rule upon NCDOT's motion in limine without holding a formal voir dire. This argument is overruled.

3. Trial Court's Ruling on N.C. Gen. Stat. § 93A–83

N.C. Gen. Stat. § 93A–83, a provision of the regulatory Real Estate License Law, provides a licensed real estate broker in good standing "may prepare a broker price opinion or comparative market analysis and charge and collect a fee for the opinion," if the list of requirements in subsection (c) of the statute are met. N.C. Gen. Stat. § 93A–83(a) (2015). The terms "broker price opinion" and "comparative market analysis" are statutorily defined as

an estimate prepared by a licensed real estate broker that details the probable selling price or leasing price of a particular parcel of or interest in property and provides a varying level of detail about the property's condition, market, and neighborhood, and information on comparable properties, but does not include an automated valuation model.

N.C. Gen. Stat. § 93A–82 (2015).

The statute also prohibits a licensed broker from preparing an appraisal. The statute states:

Notwithstanding any provisions to the contrary, a person licensed pursuant to this Chapter may not knowingly prepare a broker price opinion or comparative market analysis for any purpose in lieu of an appraisal when an appraisal is required by federal or State law. A broker price opinion or comparative market analysis that estimates the value of or worth a parcel of or interest in real estate rather than sales or leasing price shall be deemed to be an appraisal and may not be prepared by a licensed broker under the authority of this Article, but may only be prepared by a duly licensed or certified appraiser, and shall meet the regulations adopted by the North Carolina Appraisal Board. A broker price opinion or comparative market analysis shall not under any circumstances be referred to as a valuation or appraisal.

N.C. Gen. Stat. § 93A–83(f) (2015) (...